Opinion
2 CA-CR 2023-0025-PR
04-14-2023
The State of Arizona, Respondent, v. Christopher Michael Norris, Petitioner.
Dennis M. McGrane, Yavapai County Attorney By George D. Rodriguez, Deputy County Attorney, Prescott Counsel for Respondent Barber Law Group PLLC, Phoenix By Bretton H. Barber Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Yavapai County No. P1300CR201301146 The Honorable Krista M. Carman, Judge
Dennis M. McGrane, Yavapai County Attorney By George D. Rodriguez, Deputy County Attorney, Prescott Counsel for Respondent
Barber Law Group PLLC, Phoenix By Bretton H. Barber Counsel for Petitioner
Judge Kelly authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Eckerstrom concurred.
MEMORANDUM DECISION
KELLY, JUDGE
¶1 Petitioner Christopher Norris seeks review of the trial court's order dismissing his notice of post-conviction relief, filed pursuant to Rule 33, Ariz. R. Crim. P. We will not reverse a court's ruling in post-conviction proceedings "absent a clear abuse of discretion." State v. Ainsworth, 250 Ariz. 457, ¶ 1 (App. 2021) (quoting State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007)). Norris has not sustained his burden of establishing such abuse here.
¶2 Pursuant to a plea agreement, Norris was convicted of armed robbery, first-degree burglary, kidnapping, and aggravated assault. The trial court imposed a combination of concurrent and consecutive sentences, totaling fifty-two years' imprisonment. He thereafter sought and was denied post-conviction relief, and this court denied relief on review. State v. Norris, No. 1 CA-CR 18-0707 PRPC (Ariz. App. Mar. 28, 2019) (mem. decision).
¶3 In April 2020, Norris filed a pro se petition for post-conviction relief, which the trial court summarily dismissed, as well as a motion for DNA testing made pursuant to Rule 33.17. But in May, Norris initiated another proceeding for post-conviction relief pointing out he was entitled to appointment of counsel to address claims of ineffective assistance of his first Rule 33 counsel. The court appointed counsel, who filed a notice stating he had reviewed the record and had not found "a colorable claim to pursue." Norris subsequently filed a supplemental, pro se petition, arguing that he had received ineffective assistance of trial and initial Rule 33 counsel, that the court had committed sentencing error, and that his due process rights had been violated. The court summarily dismissed the proceeding.
¶4 In June 2022, Norris filed another notice of post-conviction relief, acknowledging the notice was untimely, but asserting he was without fault. He argued counsel in the post-conviction proceeding initiated in May 2020 had been ineffective in failing to raise a claim of ineffective assistance of counsel (IAC), and his failure, along with the failures of previous counsel, meant he could not be to blame for the untimely filing. The trial court dismissed the notice, determining the claims raised were untimely and precluded.
¶5 On review, Norris argues the trial court abused its discretion in dismissing his June 2022 notice because he "was raising new issues that had not been previously adjudicated." He asserts that in his third notice he raised a new IAC claim as to trial counsel and was "for the first time raising the issue of the ineffectiveness of his two court appointed Rule 33 attorneys."
¶6 As Norris acknowledges, however, he previously raised claims of ineffective assistance of trial counsel. That being so, "'the nature of the right allegedly affected by counsel's ineffective performance' is neither determinative nor relevant. Rather, because IAC claims 'cannot be raised repeatedly,' and because our supreme court has expressed 'a strong policy against piecemeal litigation,' 'preclusion is required without examining facts.'" Swoopes, 216 Ariz. 390, ¶ 24 (citation omitted) (quoting Stewart v. Smith, 202 Ariz. 446, ¶ 12 (2002)). Thus, the trial court properly concluded Norris's claims as to trial counsel were precluded.
¶7 A pleading defendant may challenge counsel's performance in his first, of-right Rule 33 proceeding, but he must do so in a timely filed second proceeding. State v. Petty, 225 Ariz. 369, ¶¶ 9-11 (App. 2010); see also Ariz. R. Crim. P. 33.4(b)(3)(C). This right, however, "extends to the first appeal of right, and no further." State v. Pruett, 185 Ariz. 128, 130 (App. 1995) (quoting Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)). Norris raised claims of ineffective assistance of first-Rule 33 counsel in his second proceeding, see Swoopes, 216 Ariz. 390, ¶ 24, and was not entitled to challenge the effectiveness of his second-Rule 33 counsel, see Pruett, 185 Ariz. at 130. The trial court therefore properly rejected these claims as well. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015) ("We will affirm a trial court's decision if it is legally correct for any reason.").
¶8 Norris also contends his notice was not untimely because he "was excused for his untimeliness under Rule 33.4(b)(3)(D)." That rule requires a trial court to "excuse an untimely notice requesting post-conviction relief . . . if the defendant adequately explains why the failure to timely file a notice was not the defendant's fault." Ariz. R. Crim. P. 33.4(b)(3)(D). In this case, however, Norris relied on the above failures of counsel, which, as discussed, are without merit. Therefore, the court did not abuse its discretion in dismissing the notice.
¶9 We grant the petition for review, but deny relief.