Opinion
No. 2 CA-CR 2014-0323-PR
12-19-2014
THE STATE OF ARIZONA, Respondent, v. ROBERT LAMONT BROWN, Petitioner.
COUNSEL Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent Robert L. Brown, Tucson 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Pima County
No. CR20111490001
The Honorable Paul E. Tang, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent
Robert L. Brown, Tucson
In Propria Persona
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Miller and Judge Espinosa concurred. ECKERSTROM, Chief Judge:
¶1 Robert Brown seeks review of the trial court's order denying his "Supplement Brief to Petition of Review," which the court treated as a successive petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Brown has not met his burden of demonstrating such abuse here.
¶2 Brown pled guilty to armed robbery and robbery and was sentenced to consecutive prison terms totaling 13.75 years. He sought post-conviction relief, and appointed counsel filed a notice stating she had reviewed the record but found no claims to raise in post-conviction proceedings. Counsel then filed a "supplemental brief" on Brown's behalf, claiming that his plea was not knowing, intelligent, and voluntary because he was not competent to plead guilty, and that his trial counsel was ineffective for failing to seek an independent evaluation of his competence after the trial court refused his request for an evaluation pursuant to Rule 11, Ariz. R. Crim. P. The trial court summarily denied relief.
In its order rejecting Brown's motion for a competency evaluation, the court stated it would "only proceed if the Public Defender's Office is willing to pay for a preliminary examination pursuant to Rule 11.2(c)."
¶3 Brown then sought, and received, numerous extensions of time in which to file a petition for review pursuant to Rule 32.9(c). He ultimately filed in the trial court a document he titled "Supplement Brief to Petition of Review," in which he again claimed he was not competent to plead guilty, the court "lacked the jurisdiction to allow an incompetent defendant to sign a plea," and his plea agreement was therefore "void." He also repeated his claim of ineffective assistance of counsel. The trial court, treating Brown's "Petition of Review" as a petition for post-conviction relief, summarily dismissed it, finding his claims precluded.
Approximately five months after filing his "Petition of Review," Brown filed yet another motion requesting permission to file a delayed petition for review. The trial court denied the motion, stating it was "moot" "because a Petition was filed." Brown does not argue on review that the trial court erred in denying that motion.
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¶4 On review, Brown argues his claims are not precluded because they involve a right of sufficient constitutional magnitude to require personal waiver, citing Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (2002). Brown is correct that, pursuant to Stewart, certain claims may be raised in a successive post-conviction proceeding without being subject to preclusion on waiver grounds pursuant to Rule 32.2(a)(3). See Stewart, 202 Ariz. 446, ¶ 12, 46 P.3d at 1071. But Stewart has no application here. Brown's claims are not precluded on waiver grounds pursuant to Rule 32.2(a)(3), they are precluded pursuant to Rule 32.2(a)(2) because they were finally adjudicated in his first post-conviction proceeding.
¶5 Although we grant review, we deny relief.