Opinion
No. 2 CA-CR 2017-0211-PR
10-26-2017
THE STATE OF ARIZONA, Respondent, v. ADAM ALCANTAR, Petitioner.
COUNSEL Kent P. Volkmer, Pinal County Attorney By Thomas C. McDermott, Deputy County Attorney, Florence Counsel for Respondent Adam Alcantar, Florence In Propria Persona
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NOT FOR PUBLICATION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. 31.24.
Petition for Review from the Superior Court in Pinal County
No. S1100CR200601723
The Honorable Kevin D. White, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Kent P. Volkmer, Pinal County Attorney
By Thomas C. McDermott, Deputy County Attorney, Florence
Counsel for Respondent
Adam Alcantar, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Chief Judge Eckerstrom concurred.
EPPICH, Judge:
¶1 Petitioner Adam Alcantar 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, 166 P.3d 945, 948 (App. 2007). Alcantar has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Alcantar was convicted of indecent exposure, two counts of child molestation, three counts of attempted sexual conduct with a minor, and four counts of sexual conduct with a minor. He was sentenced to concurrent and consecutive prison terms totaling 144 years. We affirmed his convictions and sentences on appeal. State v. Alcantar, No. 2 CA-CR 2009-0109 (Ariz. App. Apr. 30, 2010) (mem. decision). And we denied relief pursuant to his petition for review of the trial court's denial of his first petition for post-conviction relief. State v. Alcantar, No. 2 CA-CR 2013-0077-PR (Ariz. App. Jun. 10, 2013) (mem. decision). We dismissed a subsequent petition for review from the court's denial of Alcantar's second petition for post-conviction relief. State v. Alcantar, No. 2 CA-CR 2016-0361-PR (Ariz. App. Jan. 25, 2017) (mem. decision).
¶3 Alcantar then initiated another proceeding for post-conviction relief, arguing in his petition that the trial court had erroneously instructed the jury, erred in ruling on trial objections, and demonstrated "judicial bias." The court summarily denied relief, concluding Alcantar's claims could have been raised in previous proceedings and were therefore precluded.
¶4 On review, Alcantar argues his claims are "fundamental and structural" and of sufficient constitutional magnitude that they "cannot be deemed waived or precluded." But, claims of fundamental error are subject to preclusion. See Swoopes, 216 Ariz. 390, ¶ 42, 166 P.3d at 958. And, although a timely claim of sufficient constitutional magnitude may be exempt from preclusion, such a claim is not exempt from the timeliness requirements of Rule 32.4(a). See State v. Lopez, 234 Ariz. 513, ¶ 8, 323 P.3d 1164, 1166 (App. 2014). "Thus, whether the underlying claim is of a sufficient constitutional magnitude to require a knowing, voluntary, and intelligent waiver is immaterial . . . ." Id. Because Alcantar's claims are either untimely or precluded, we conclude the trial court properly rejected them.
¶5 Therefore, we grant the petition for review, but deny relief.