Opinion
No. 1 CA-CR 13-0146 PRPC
07-22-2014
STATE OF ARIZONA, Respondent, v. MARK ANDREW JOYA, Petitioner.
Maricopa County Attorney's Office, Phoenix By Diane M. Meloche Counsel for Respondent Mark Andrew Joya, Tucson Petitioner
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Petition for Review from the Superior Court in Maricopa County
No. CR2010-152141-001
The Honorable Susanna C. Pineda, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Diane M. Meloche
Counsel for Respondent
Mark Andrew Joya, Tucson
Petitioner
MEMORANDUM DECISION
Presiding Judge Randall M. Howe, Judge John C. Gemmill, and Judge Kent E. Cattani delivered the decision of the Court.
PER CURIAM:
¶1 Petitioner Mark Andrew Joya seeks review of the dismissal of his petition for post-conviction relief. For reasons that follow, we grant review and deny relief.
¶2 Joya pled guilty to second degree burglary, theft of means of transportation, and possession or use of marijuana in three separate cases. The trial court sentenced him to 6.5 years' imprisonment for burglary, a consecutive term of 3.5 years' imprisonment for theft of means, and placed him on three years' probation for possession of marijuana. Joya waited nearly two years to file his first consolidated notice of post-conviction relief. The trial court summarily dismissed the notice as untimely and Joya now seeks review. We have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).
¶3 In his petition for review, Joya argues the trial court should have allowed him to file an untimely notice of post-conviction relief of-right. A defendant must file a notice of post-conviction relief in a Rule 32 "of-right" proceeding within ninety days after the entry of judgment or sentence. Ariz. R. Crim. P. 32.4(a). A trial court may summarily dismiss a petition for post-conviction relief not filed within ninety days. State v. Rosario, 195 Ariz. 264, 266, ¶ 7, 987 P.2d 226, 228 (App. 1999). Joya offers no explanation for why he failed to file a timely notice and identifies no claims that would entitle him to some type of relief. If an untimely notice of post-conviction relief does not provide meritorious reasons that substantiate a claim for relief and indicate why the defendant did not raise the claim in a timely manner, "the notice shall be summarily dismissed." Ariz. R. Crim. P. 32.2(b).
Joya's attempt to incorporate by reference the arguments he raised in his pleadings below is unavailing. A petition for review may not incorporate by reference any issue or argument, but rather must set forth specific claims, present sufficient argument supported by legal authority, and include citation to the record. State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991); Ariz. R. Crim. P. 32.5, 32.9(c). In any event, Joya's notice to the trial court was similarly deficient, arguing that he should be allowed to present unidentified evidence to "bolster" an unspecified claim of ineffective assistance of counsel.
¶4 We grant review and deny relief.