Opinion
No. 2 CA-CR 2013-0473-PR
02-10-2014
THE STATE OF ARIZONA, Respondent, v. BOBBY RAY KIRKLAND, Petitioner.
Bobby Ray Kirkland, Florence 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NOT FOR PUBLICATION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 Maricopa County
No. CR2004040703001DT
The Honorable Christine E. Mulleneaux, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Bobby Ray Kirkland, Florence
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.
KELLY, Presiding Judge:
¶1 Bobby Kirkland petitions this court for review of the trial court's order summarily dismissing his successive notice of 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. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Kirkland has not met his burden of demonstrating such abuse here.
¶2 Kirkland pled guilty in 2004 to attempted sexual conduct with a minor. The trial court suspended the imposition of sentence and placed Kirkland on lifetime probation. Although Kirkland filed a notice of post-conviction relief, he did not file a petition, and the proceeding was dismissed.
¶3 In 2010, Kirkland admitted violating a term of his probation. The trial court revoked probation and sentenced Kirkland to a seven-year prison term. Kirkland filed a notice of post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but found no "claims for relief to raise in post-conviction relief proceedings." Kirkland filed a pro se petition claiming, inter alia, that his trial and Rule 32 counsel had been ineffective and that the sex offender registration and dangerous crimes against children statutes are unconstitutional. The trial court summarily denied relief. Kirkland did not seek review of that ruling pursuant to Rule 32.9(c).
¶4 In September 2013, Kirkland filed another notice of post-conviction relief claiming his trial counsel had been ineffective for failing to adequately explain the consequences of pleading guilty
to the original offense and the sex offender registration and dangerous crimes against children statutes are unconstitutional. He also claimed that Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399 (2012), constituted a significant change in the law permitting him to raise his claim of ineffective assistance in an untimely proceeding pursuant to Rule 32.1(g) and Rule 32.2(b). The trial court summarily dismissed the notice, determining Frye did not constitute a significant change in the law and Kirkland's claims were precluded.
¶5 On review, Kirkland repeats his claims and argues, for the first time, that his trial counsel and the court did not advise him about special conditions of his probation, reasoning that his plea was therefore involuntary. Even were this claim not precluded, see Ariz. R. Crim. P. 32.2(a)(3), we do not address arguments raised for the first time on review, State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980). See also Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review limited to "issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review"). As to the claims Kirkland did raise below, they clearly are precluded or warrant summary rejection. His claims of ineffective assistance of counsel and his constitutional claims were either raised and rejected or could have been raised in his previous Rule 32 proceeding. Ariz. R. Crim. P. 32.2(a)(2), (3).
¶6 Although a claim that there has been a significant change in the law is not necessarily subject to preclusion, Ariz. R. Crim. P. 32.1(g), 32.2(b), Frye is not such a change. In Frye, the Supreme Court acknowledged a defendant has a right to effective representation by counsel during plea negotiations. Frye, ___ U.S. at ___, 132 S. Ct. at 1407-08. But it has long been the law in Arizona that a defendant is entitled to effective representation in the plea context. See State v. Donald, 198 Ariz. 406, ¶¶ 9, 14, 10 P.3d 1193, 1198, 1200 (App. 2000). Thus, any such claim could have been raised in a previous collateral proceeding and is now precluded. See Ariz. R. Crim. P. 32.1(g), 32.2(a); see also State v. Poblete, 227 Ariz. 537, ¶ 8, 260 P.3d 1102, 1105 (App. 2011) (significant change in law "'requires some transformative event, a clear break from the past'"), quoting State v. Shrum, 220 Ariz. 115, ¶ 15, 203 P.3d 1175, 1178 (2009).
¶7 Although review is granted, relief is denied.