Opinion
No. 2 CA-CR 2014-0284-PR
09-16-2014
THE STATE OF ARIZONA, Respondent, v. FELIPE SANDOVAL, Petitioner.
Felipe Sandoval, 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Maricopa County
No. CR2008180522001DT
The Honorable Joseph C. Welty, Judge
REVIEW GRANTED; RELIEF DENIED
Felipe Sandoval, Tucson
In Propria Persona
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Judge Vásquez and Judge Brammer concurred. HOWARD, Judge:
The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 Felipe Sandoval petitions this court for review of the trial court's order summarily dismissing his notice of postconviction 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). Sandoval has not met his burden of demonstrating such abuse here.
¶2 Sandoval was convicted after a jury trial of first-degree burglary, aggravated assault, misconduct involving body armor, and misconduct involving weapons. He was sentenced to concurrent prison terms, the longest of which is eighteen years. This court affirmed his convictions and sentences on appeal. State v. Sandoval, No. 1 CA-CR 09-0720 (memorandum decision filed Oct. 21, 2010).
¶3 Sandoval sought post-conviction relief, filing a pro se petition which the trial court summarily denied in December 2011. Sandoval did not seek review of that ruling. In March 2013, Sandoval filed a notice of post-conviction relief indicating he wished to raise claims of newly discovered material facts and actual innocence. He asserted he had "just received" the case file from his attorney and thus had been "ill-equipped to file an actual innocence claim" in his first Rule 32 proceeding.
¶4 The trial court summarily dismissed the notice, concluding Sandoval had failed to support his claims of actual innocence and newly discovered material facts. It also observed that, to the extent Sandoval was seeking relief pursuant to Rule 32.1(f) by asserting "the untimely filing of his notice of postconviction relief was through no fault of his own," Sandoval had sworn in a previous notice of post-conviction relief that he had included "all claims and grounds for post-conviction relief" known to him. This petition for review followed.
¶5 On review, Sandoval appears to argue the trial court erred in rejecting his claims made pursuant to Rule 32.1(e) and 32.1(h) because those claims may be raised in an untimely proceeding like this one. Although Sandoval is correct that such claims are not subject to the timeliness requirement of Rule 32.4(a), the court did not err in summarily dismissing his notice. Rule 32.2(b) requires a defendant to set forth in his notice "the substance of the specific exception and the reasons for not raising the claim in the previous petition or in a timely manner," including "meritorious reasons . . . substantiating the claim." A trial court is required to summarily dismiss a notice that does not meet these requirements. Rule 32.2(b).
¶6 Although Sandoval's assertion in his notice that he only recently had received his case file from his counsel arguably explains why he had not raised his Rule 32.1(e) and (h) claims in his previous petition, he did not provide any facts substantiating those claims as required by Rule 32.2(b). Thus, the trial court correctly dismissed his notice of post-conviction relief.
¶7 Although we grant review, we deny relief.