Opinion
No. 2 CA-CR 2015-0214-PR
07-10-2015
THE STATE OF ARIZONA, Respondent, v. JUAN ALBERTO CASTELO, Petitioner.
Juan A. Castelo, San Luis 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NOT FOR PUBLICATION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 Maricopa County
No. CR2008115441001SE
The Honorable Steven P. Lynch, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
Juan A. Castelo, San Luis
In Propria Persona
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez and Judge Kelly concurred. HOWARD, Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court. --------
¶1 Juan Castelo seeks review of the trial court's order dismissing his untimely notice for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Castelo has not met his burden of demonstrating such abuse here.
¶2 In 2009, Castelo pled guilty to attempted second-degree murder, aggravated assault, first-degree burglary, unlawful flight from a law enforcement vehicle, leaving the scene of an injury accident, credit card theft, theft of a means of transportation, possession of burglary tools, and two counts each of armed robbery and attempted armed robbery. The trial court sentenced him to a combination of concurrent and consecutive prison terms totaling thirty-seven years.
¶3 In 2012, Castelo filed a notice of post-conviction relief in which he stated he did not want counsel appointed and identified claims that his failure to timely seek post-conviction relief was without fault on his part and that he was actually innocent. He stated that his charge of attempted second-degree murder "is not legally cognizable in the state of Arizona," his indictment did not "state its claims with any factual support," his proceedings had been "before [a] commissioner as distinct from [a] judge," and the commissioner had "amended [his] sentence after its imposition" outside of his presence. Castelo further claimed his trial counsel had done "nothing beyond initial appearance . . . and two motions to continue . . . while receiving $20,000," and had "acted in concert with [the] prosecution to coerce [his] guilty plea." Finally, he claimed his right to appeal was not "extinguish[ed]" because his right to counsel had been denied.
¶4 The trial court summarily denied relief. It determined that, although Castelo had referred to a claim of actual innocence pursuant to Rule 32.1(h), his substantive claims were instead properly analyzed pursuant to Rule 32.1(a) and, as such, could not be raised in an untimely proceeding. And the court concluded Castelo had offered no support for his claim that his failure to timely seek post-conviction relief was without fault on his part. This petition for review followed.
¶5 On review, Castelo repeats and expands on his claims raised below. Specifically, he argues that the indictment was flawed because it was insufficiently specific and "duplicitous and multiplicitous," and because attempted second-degree murder is not a cognizable charge under Arizona law; the commissioner was not "constitutionally or statutorily competent" to enter rulings in his case; and his counsel was so deficient "as to constitute a denial of counsel." We agree with the trial court that the majority of those claims cannot be raised in this untimely proceeding because they do not fall within the grounds set forth in Rule 32.1(d) through (h). Ariz. R. Crim. P. 32.4(a).
¶6 Castelo, however, characterizes his claim that attempted second-degree murder is not a cognizable offense under Arizona law as falling within Rule 32.1(h) and thus raisable in an untimely proceeding under Rule 32.4(a). But, even assuming Castelo's characterization is proper, his claim fails. As he did below, Castelo cites State v. Ontiveros, 206 Ariz. 539, 81 P.3d 330 (App. 2003). But nothing in that case supports the notion that a charge of attempted second-degree murder is defective as a matter of law. And Castelo made no effort in his notice below to identify "meritorious reasons . . . substantiating the claim and indicating why the claim was not stated in the previous petition or in a timely manner" as required by Rule 32.2(b).
¶7 Castelo similarly failed to comply with Rule 32.2(b) in regards to his claim pursuant to Rule 32.1(f) that his failure to timely seek post-conviction relief was without fault on his part. Castelo's attempt to more fully develop his claims on review comes too late — we do not address arguments not presented below. See Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review must contain "issues . . . decided by the trial court"); cf. State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980) (appellate court does not consider issues in petition for review that "have obviously never been presented to the trial court for its consideration"). Thus, the trial court correctly dismissed Castelo's untimely notice of post-conviction relief. See Ariz. R. Crim. P. 32.2(b) (requiring court to summarily dismiss noncompliant notice).
¶8 We grant review but deny relief.