Opinion
2 CA-CR 2013-0274-PR
2013-09-11
THE STATE OF ARIZONA, Respondent, v. ALEJANDRO MORA ROLON, Petitioner.
Alejandro Mora Rolon Florence In Propria Persona
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF MARICOPA COUNTY
Cause No. CR1997008498
Honorable Samuel A. Thumma, Judge
Honorable Douglas Rayes, Judge
REVIEW GRANTED; RELIEF DENIED
Alejandro Mora Rolon Florence
In Propria Persona
MILLER, Judge.
¶1 After a jury trial, petitioner Alejandro Rolon was acquitted of kidnapping a nine-year-old victim but found guilty and convicted of child molestation and sexual conduct with a minor; the trial court sentenced him to consecutive prison terms of thirty-three and thirty-five years, respectively. This court affirmed the convictions and sentences on appeal. State v. Rolon, No. 1 CA-CR 00-0855 (memorandum decision filed June 13, 2002). This petition for review follows the trial court's orders dismissing what appears to have been Rolon's third notice of post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P., in which Rolon stated he intended to raise claims of ineffective assistance of counsel and actual innocence, and denying his motion for rehearing as untimely filed. See Ariz. R. Crim. P. 32.1(a), (h); see also State v. Petty, 225 Ariz. 369, ¶ 11, 238 P.3d 637, 641 (App. 2010) (ineffective assistance of counsel "cognizable under Rule 32.1(a)").
Rolon called the document he filed a notice of post-conviction relief. Although the trial court referred to it as a petition for post-conviction relief, the court appears to have been aware that it was a notice, evaluating it under Rule 32.4(a), Ariz. R. Crim. P., which pertains to the filing of a notice of post-conviction relief and the related time limits to commence a post-conviction proceeding.
¶2 We will not disturb the trial court's ruling unless the court clearly abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We see no such abuse here. The court dismissed Rolon's notice after it identified and properly characterized the claims Rolon had stated he wished to assert in this successive proceeding, concluding correctly Rolon had "failed to state a claim for which relief can be granted in an untimely Rule 32 proceeding." Ariz. R. Crim. P. 32.4(a). We need not restate the court's ruling in its entirety here. Rather, we adopt the court's ruling because the record, the rules, and the applicable case law support it. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). Rolon has not sustained his burden of establishing on review that the court abused its discretion by summarily dismissing the notice of post-conviction relief. See Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d at 948.
We note that Rolon refers to and provides the court with the June 7, 2012 Minute Entry by Judge Rayes that denied his motion for rehearing. As Judge Rayes correctly noted, the dispositive ruling that was made by Judge Thumma on April 18, 2012, summarily dismissed the petition for post-conviction relief. Assuming Rolon claims the trial court erred in denying his motion for rehearing, we find no error.
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¶3 The petition for review is granted, but the request for relief on review is denied.
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MICHAEL MILLER, Judge
CONCURRING: ________________
JOSEPH W. HOWARD, Chief Judge
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GARYE L. VÁSQUEZ, Presiding Judge