Opinion
No. 1 CA-CR 16-0214 PRPC
08-17-2017
STATE OF ARIZONA, Respondent, v. RAYMOND MICHAEL CONOBOY, Petitioner.
COUNSEL Yavapai County Attorney's Office, Prescott By Michael P. McGill Counsel for Respondent Raymond Michael Conoboy, Florence Petitioner
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Petition for Review from the Superior Court in Yavapai County
No. V1300CR201380067
The Honorable Michael R. Bluff, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Yavapai County Attorney's Office, Prescott
By Michael P. McGill
Counsel for Respondent
Raymond Michael Conoboy, Florence
Petitioner
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in which Judge Jon W. Thompson and Judge Paul J. McMurdie joined.
CATTANI, Judge:
¶1 Raymond Michael Conoboy seeks review of the superior court's summary denial of his second untimely petition for post-conviction relief. For reasons that follow, we grant review but deny relief.
¶2 Conoboy pleaded guilty to participating in a criminal street gang, threatening and intimidating to promote a criminal street gang, aggravated assault with a deadly weapon, and misconduct involving weapons, each with one historical prior felony conviction. The court sentenced him to concurrent terms of imprisonment, the longest of which is 10 years.
¶3 Conoboy filed his first notice of post-conviction relief almost 10 months later. Although he referred to claims under Rule 32.1(e) (newly discovered evidence), (f) (no fault for failure to timely file notice), (g) (significant change in the law), and (h) (actual innocence), the only supporting fact he included was that the Arizona Department of Corrections ("ADC") had lost his paperwork. The superior court summarily dismissed the notice as untimely and lacking factual underpinnings necessary to excuse the untimely filing and substantiate the claims. See Ariz. R. Crim. P. 32.4(a), 32.2(b). Conoboy moved for reconsideration, asserting that ADC's loss of his paperwork immediately after sentencing showed that the untimely filing was not his fault. Noting that Conoboy had been personally advised of his post-conviction rights (including the 90-day deadline) at sentencing and that the unspecified paperwork was not necessary to initiate a timely of-right Rule 32 proceeding, the court denied reconsideration.
¶4 Conoboy then filed a second untimely notice asserting, among other claims, that his failure to timely file was without fault because he had asked counsel to file a notice, but she failed to do so. The court accepted the notice and appointed post-conviction counsel, who found no colorable claims. Conoboy filed petitions in propria persona asserting claims of ineffective assistance of counsel (leading to an unlawfully induced guilty plea), incompetence to enter the plea (due to medication and mental health issues), insufficient factual basis for the plea, newly discovered evidence (affidavit from the codefendant) proving actual innocence, unconstitutional denial of a preliminary hearing, and prosecutorial misconduct (allegedly slandering Conoboy based on hearsay). After full briefing, the superior court dismissed the petition as untimely and for failure to raise any colorable claims. The court later denied Conoboy's motions seeking reconsideration, and Conoboy filed this petition for review.
¶5 We deny relief. Most of Conoboy's arguments—ineffective assistance, competence to enter the plea, factual basis for the plea, right to a preliminary hearing, and prosecutorial misconduct—are constitutional claims under Rule 32.1(a) and cannot be raised in an untimely or successive post-conviction proceeding. See Ariz. R. Crim. P. 32.4(a). Conoboy argued that his untimely filing should be excused under Rule 32.1(f) because his counsel failed to file a notice despite his request. But he did not mention this excuse until his second untimely notice, and he offered no adequate explanation for his delay to that point.
¶6 Conoboy's only claim appropriately raised in an untimely and successive Rule 32 proceeding—newly discovered evidence in the form of an affidavit from the codefendant, which Conoboy argues proves actual innocence, see Ariz. R. Crim. P. 32.1(e), (h), 32.4(a)—is not colorable. Conoboy claimed to have discussed this affidavit with his attorney before accepting the plea, meaning the evidence was not newly discovered. See Ariz. R. Crim. P. 32.1(e)(1) (requiring that the evidence be "discovered after the trial"); State v. Amaral, 239 Ariz. 217, 219, ¶ 9 (2016) (noting that "the evidence must appear on its face to have existed at the time of trial but be discovered after trial") (citation omitted). Although Conoboy's claim relies entirely on this affidavit, he never provided a copy of the affidavit (or other factual or documentary support for the claim) despite multiple opportunities to do so. And the codefendant's other statements were not exculpatory, but rather inculpated Conoboy.
¶7 Moreover, even if Conoboy's untimely filing were excused, he failed to present any colorable claim for relief. Conoboy cannot raise his preliminary hearing and prosecutorial misconduct claims because by entering the plea agreement, he waived all prior non-jurisdictional defects, including purported deprivations of constitutional rights, except as they relate to his plea. See Tollett v. Henderson, 411 U.S. 258, 267 (1973); State v. Hamilton, 142 Ariz. 91, 94 (1984); State v. Quick, 177 Ariz. 314, 316 (App. 1993).
¶8 Conoboy disputes the factual basis to establish his gang affiliation, but the record as a whole provides adequate support. See State v. Sodders, 130 Ariz. 23, 25 (1981). Although Conoboy disputed affiliation with the Aryan Brotherhood, he acknowledged saying "white power" during the course of the offense, and both defense counsel and the prosecutor acknowledged that the victims had heard Conoboy claim to be a member of the Aryan Brotherhood and had seen his white supremacist tattoos.
¶9 Conoboy's claim of incompetence to enter the plea is not supported by the record. He provided no medical records to substantiate any mental health claims, and the court found, based on its own observations, no basis to question Conoboy's competency and no indication Conoboy had been "under the influence of any medication, much less 'heavily sedated' or unable to participate or assist his counsel." See State v. Gunter, 132 Ariz. 64, 71 (App. 1982).
¶10 And, aside from the assertion that counsel failed to pursue a competency evaluation, Conoboy's generic claim of ineffective assistance of counsel is unsubstantiated. The court noted that the record did not support Conoboy's assertion that counsel stopped working on his case. Conoboy's claim that counsel "bullied" him into accepting the plea agreement is contradicted by his express acknowledgement during the plea colloquy of no improper influence. And while Conoboy maintains that counsel failed to adequately investigate exculpatory witnesses, his only support for this claim is the mention of the codefendant's purported affidavit, which Conoboy never provided.
¶11 Accordingly, we grant review but deny relief.