Opinion
No. 2 CA-CR 2020-0145-PR
09-25-2020
THE STATE OF ARIZONA, Respondent, v. CHRIS ALLEN SIMCOX, Petitioner.
COUNSEL Allister Adel, Maricopa County Attorney By Jeffrey L. Sparks, Deputy County Attorney, Phoenix Counsel for Respondent Chris A. Simcox, Buckeye 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NOT FOR PUBLICATION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. 31.19(e). Petition for Review from the Superior Court in Maricopa County
No. CR2013428563001DT
The Honorable Jose S. Padilla, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Allister Adel, Maricopa County Attorney
By Jeffrey L. Sparks, Deputy County Attorney, Phoenix
Counsel for Respondent Chris A. Simcox, Buckeye
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Eppich authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. EPPICH, Presiding Judge:
¶1 Petitioner Chris Simcox seeks review of the trial court's order dismissing his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007). Simcox has not sustained his burden of establishing such abuse here.
Our supreme court amended the post-conviction relief rules, effective January 1, 2020. Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019). "Because it is neither infeasible nor works an injustice here, we cite to and apply the current version of the rules." State v. Mendoza, 249 Ariz. 180, n.1 (App. 2020) ("amendments apply to all cases pending on the effective date unless a court determines that 'applying the rule or amendment would be infeasible or work an injustice'" (quoting Ariz. Sup. Ct. Order R-19-0012)).
¶2 After a jury trial, Simcox was convicted of furnishing obscene or harmful items to minors and two counts of child molestation. The trial court sentenced him to concurrent and consecutive prison terms totaling 19.5 years. The convictions and sentences were affirmed on appeal. State v. Simcox, No. 1 CA-CR 16-0485, ¶ 22 (Ariz. App. Oct. 17, 2017) (mem. decision). Simcox thereafter sought post-conviction relief, arguing in his petition that he had not been "afforded an opportunity to see and review the presentence report (PSR) prior to sentencing, thus violating his right to due process." The trial court held a status conference at which the petition was discussed and the court noted in its minute entry that it believed the issue had been waived and could not be raised as one of ineffective assistance of counsel because Simcox had represented himself. But, "[i]n order to make a clean record" for review, the court allowed supplemental briefing on "the role of advisory counsel after trial." Following its review of the briefing, the court summarily dismissed the petition.
¶3 On review, Simcox argues the trial court abused its discretion in dismissing his petition because "the absen[c]e of advisory counsel during [the] sentencing phase" and his not having been provided a copy of the presentence report were "fundamental, substantive error[s]." But these are claims of constitutional error—a due process claim and one for denial of the right to counsel—and both fall under Rule 32.1(a). As such, they are precluded due to Simcox's failure to raise them on appeal. See Ariz. R. Crim. P. 32.2(a)(3). The court therefore did not abuse its discretion in dismissing the petition.
To the extent Simcox's claim relating to advisory counsel can be read as one of ineffective assistance of counsel, the trial court correctly rejected it. See State v. Russell, 175 Ariz. 529, 534 (App. 1993) ("[A]fter waiving his right to counsel at trial, the defendant has no constitutionally protected right to challenge the advice or services provided by advisory counsel.") (citing Pennsylvania v. Finley, 481 U.S. 551, 557 (1987)). --------
¶4 We grant the petition for review, but we deny relief.