Opinion
No. 2 CA-CR 2014-0348-PR
01-06-2015
THE STATE OF ARIZONA, Respondent, v. ROBERT MARTINEZ, Petitioner.
COUNSEL Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent Robert Martinez, Tucson 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NOT FOR PUBLICATION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 Pima County
No. CR20120163001
The Honorable Paul E. Tang, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent
Robert Martinez, Tucson
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. KELLY, Presiding Judge:
¶1 Robert Martinez seeks review of the trial court's order summarily dismissing his petition for 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). Martinez has not met his burden of establishing such abuse here.
¶2 Martinez pled guilty to first-degree burglary, an offense he committed while on supervised release for a 1998 armed robbery conviction. The trial court sentenced him to a 3.5-year prison term. The sentencing minute entry specified the sentence was to begin that day, but the court did not specify a commencement date at sentencing.
¶3 Martinez sought post-conviction relief, and appointed counsel filed a notice stating she had reviewed the record but had found no "arguably meritorious legal issues" to raise in post-conviction proceedings. Despite having been granted leave to file a pro se petition, Martinez did not do so, and the trial court dismissed the Rule 32 proceeding in February 2013.
¶4 In December 2013, Martinez filed a motion for reconsideration claiming the Arizona Department of Corrections (ADOC) had "misint[erpre]ted" the sentencing minute entry and had not calculated his release date based on the March 22, 2012 commencement date listed in that minute entry. The trial court denied the motion, stating it "does not have jurisdiction over calculations made by the Department of Corrections." The court also denied as untimely Martinez's subsequent motion to amend his sentence.
¶5 Martinez then filed a notice and petition for post-conviction relief asserting that ADOC was treating his burglary prison term as running consecutively to his unexpired sentence for armed robbery, which had been reinstated after his early release was revoked, and arguing counsel had been ineffective in failing to request that the court order the sentences to run concurrently. He additionally argued the "Court and State" had erred in failing to specify the sentence was to be concurrent in the sentencing minute entry and plea agreement, respectively. Martinez also included a "motion to re-file" his notice and petition, which the court treated as a supplement to the petition, stating the motion was unnecessary because Martinez was entitled to file a successive notice and petition "when the claim arises under Rule[] 32.1(d), (e), (f), (g), or (h)." In that motion, Martinez argued his claim was "newly discovered" based on ADOC's August 2013 response to his request for clarification of his release dates.
¶6 The trial court summarily dismissed Martinez's petition. It concluded that consecutive sentences were required by A.R.S. § 13-711(B); that his claim of ineffective assistance of counsel was without merit and that Martinez had not identified any legal basis for his other claims. The court also stated it had reviewed the record and found no error in the entry of plea or in sentencing. This petition for review followed.
The trial court stated it would address the claim of ineffective assistance based on Martinez's assertion "that he did not know of this issue until August 22, 2013, well after his first Rule 32 action."
¶7 On review, Martinez asserts for the first time that he would not have accepted the plea had he realized his sentence would be consecutive to his other, previously imposed sentence and that he should have been advised of that fact. Even were this claim not precluded by Rule 32.2(a), we do not address arguments raised for the first time on review. See Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review shall contain "issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review"); see also State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980) (reviewing court will not consider issues raised for first time on review). Martinez does not otherwise argue the trial court erred in summarily dismissing his petition.
¶8 Accordingly, we grant review but deny relief.