Opinion
2 CA-CR 2024-0078-PR
08-14-2024
The State of Arizona, Respondent, v. Ramon Caballo Caro, Petitioner.
Ramon Caballo Caro, Tucson In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20171190001 The Honorable Christopher Browning, Judge
Ramon Caballo Caro, Tucson In Propria Persona
Vice Chief Judge Eppich authored the decision of the Court, in which Presiding Judge Sklar and Judge Kelly concurred.
MEMORANDUM DECISION
EPPICH, VICE CHIEF JUDGE
¶1 Ramon Caro seeks review of the trial court's order summarily dismissing his notice of and petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., and its order denying his motion for rehearing. We will not disturb those rulings unless the court abused its discretion. See State v. Martinez, 226 Ariz. 464, ¶ 6 (App. 2011). Caro has not met his burden of establishing such abuse.
¶2 After two jury trials, Caro was convicted of manslaughter, two counts of aggravated assault, driving under the influence of an intoxicant, and aggravated driving with an alcohol concentration of .20 or more. For manslaughter, the trial court sentenced Caro to a 10.5-year prison term, to be served concurrently with lesser prison terms for Caro's convictions of aggravated assault. For Caro's remaining convictions, the court suspended the imposition of sentence and placed Caro on concurrent five-year terms of probation. We affirmed his convictions, sentences, and disposition on appeal. State v. Caro, No. 2 CA-CR 2019-0232 (Ariz. App. Sept. 15, 2020) (mem. decision).
¶3 Our mandate issued on March 2, 2021. On March 15, 2021, Caro filed a notice of post-conviction relief. The trial court rejected the notice on March 22, stating it "d[id] not abide by Rule 32.4 or Rule 41, Form 24(b), Arizona Rules of Criminal Procedure." The court gave Caro leave, however, to file a notice "with the proper/required information so long as [Caro]'s notice is properly filed in the required time period." Caro did not seek review of that ruling.
¶4 In December 2023, Caro filed a notice of and petition for post-conviction relief. He indicated in the notice that he was raising a claim pursuant to Rule 32.1(a). Although he acknowledged the notice was untimely, he asserted the late filing was not his fault, referring to the trial court's March 22, 2021 ruling. In his accompanying petition, Caro asserted his trial counsel had been ineffective. The court summarily dismissed the notice as untimely, citing Rule 32.4(a)(3)(A). Caro filed a motion for rehearing, which the court denied. This petition for review followed.
¶5 On review, Caro repeats his claims of ineffective assistance of counsel and asserts it may be raised in an untimely proceeding, citing Stewart v. Smith, 202 Ariz. 446 (2002). Caro misunderstands the rule described in Stewart, which permits a defendant to raise constitutional claims requiring knowing waiver in a successive proceeding without the claim being subject to preclusion on waiver grounds under Rule 32.2(a)(3). 202 Ariz. 446, ¶¶ 1, 10, 12. As we explained in State v. Lopez, that rule does not apply to claims raised in an untimely proceeding like this one. 234 Ariz. 513, ¶¶ 6-8 (App. 2014). Caro does not otherwise address the trial court's conclusion that his notice was untimely and has not established the court erred in summarily dismissing it.
¶6 We write further, however, to note an anomalous entry in the record before this court. The record includes a notice of post-conviction relief with a date stamp of March 7, 2021. If that date is correct, this notice was timely, having been filed within thirty days of our mandate, see Ariz. R. Crim. P. 32.4(a)(3)(A), appears to be facially compliant with Rule 32.4 and Rule 41, Form 24(b), and includes a request for appointed counsel. But Caro dated his signature on that filing May 4, 2021-consistent with a notary stamp affixed to the final page. If that notice was filed after May 4, 2021, it appears to be untimely. See Ariz. R. Crim. P. 32.4(a)(3)(A). The record, however, contains no ruling addressing the filing.
¶7 Because Caro has not established the trial court erred in summarily dismissing his most-recent notice of post-conviction relief, although we grant review, we deny relief.