Opinion
No. 2 CA-CR 2018-0310-PR
03-25-2019
THE STATE OF ARIZONA, Respondent, v. DAMASO ALAVEZ, Petitioner.
COUNSEL Law Offices of Thomas E. Higgins P.L.L.C., Tucson By Thomas E. Higgins Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Pima County
No. CR20113655001
The Honorable Teresa Godoy, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Law Offices of Thomas E. Higgins P.L.L.C., Tucson
By Thomas E. Higgins
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Vásquez and Judge Brearcliffe concurred.
STARING, Presiding Judge:
¶1 Petitioner Damaso Alavez seeks review of the trial court's order denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007). Alavez has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Alavez was convicted on one count each of second-degree murder, criminal damage, endangerment, driving under the influence of an intoxicant, driving with an alcohol concentration (BAC) of .08 or more, and driving while under the extreme influence of liquor. In October 2012, the trial court sentenced him to concurrent and consecutive, presumptive terms totaling 18.25 years' imprisonment. In 2013, this court vacated his conviction and sentence for driving with a BAC of .08 or more, but otherwise affirmed his convictions and sentences on appeal. State v. Alavez, No. 2 CA-CR 2012-0441 (Ariz. App. July 19, 2013) (mem. decision).
¶3 In April 2018, Alavez sought post-conviction relief, arguing in his petition that he had received ineffective assistance of trial and appellate counsel. Concluding Alavez's claims were untimely, the trial court summarily dismissed the proceeding. The court also denied Alavez's subsequent motion for reconsideration, in which he argued for the first time that he was "entitled to file [a] Rule 32 Petition based on the holding of State v. Bennett," 213 Ariz. 562 (2006).
¶4 On review, Alavez argues the trial court erred in determining his claims were untimely. Relying on Bennett, he contends he is entitled to raise his claims of ineffective assistance in this untimely proceeding because, as in Bennett, it was "the first proceeding in which" he could raise such a claim. The court in Bennett, however, addressed whether a claim of ineffective assistance of appellate counsel was precluded in a second Rule 32 proceeding when the same attorney had represented the defendant on appeal and in a first Rule 32 proceeding; it did not address whether a claim
of ineffective assistance of counsel may be raised in an untimely proceeding such as this one. 213 Ariz. 562, ¶¶ 1, 14-16.
¶5 In any event, Alavez did not argue he was entitled to raise his claims of ineffective assistance despite the untimeliness of the proceeding until his motion for reconsideration. The trial court was not required to address an argument first raised in such a motion. See State v. Ramirez, 126 Ariz. 464, 467-68 (App. 1980); see also State v. Bortz, 169 Ariz. 575, 577 (App. 1991). And, to the extent Alavez now relies on our supreme court's decision in State v. Diaz, 236 Ariz. 361 (2014), we do not consider that argument because it was not raised below. See Ramirez, 126 Ariz. at 468; see also Ariz. R. Crim. P. 32.9(c)(4)(B)(ii) (petition for review shall contain "issues the trial court decided that the defendant is presenting for appellate review").
¶6 Although we grant the petition for review, we deny relief.