Opinion
No. 2 CA-CR 2014-0214-PR
07-23-2014
THE STATE OF ARIZONA, Respondent, v. DWIGHT LARUE WESLEY, Petitioner.
Dwight L. Wesley, 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NOT FOR PUBLICATION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. CR2010122333001DT
The Honorable Glenn M. Davis, Judge
REVIEW GRANTED; RELIEF GRANTED
Dwight L. Wesley, 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 Petitioner Dwight Wesley seeks review of the trial court's order denying 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, 166 P.3d 945, 948 (App. 2007). Wesley has sustained his burden of establishing such abuse here, and we therefore grant relief.
¶2 Pursuant to a plea agreement, Wesley was convicted of second-degree murder, a domestic-violence offense. On February 4, 2011, the trial court sentenced him to an aggravated prison term of twenty-two years. On August 31, 2012, Wesley filed a "Motion to Re-instate Rule (32) Proceedings," in which he asked the court to "re-instate his right to file a delayed petition under newly discovered evidence." He asserted "[a]ssigned counsel advised petitioner he would file the notice [of post-conviction relief], however, he failed in his promise." He further argued that the imposition of 3.5 years of community supervision to his twenty-two year prison term had not been part of his plea agreement, making his plea involuntary. And he apparently maintained counsel was ineffective in relation to his plea. He also asked, inter alia, that the court "assign counsel to file a delayed petition." The court rejected Wesley's claims of ineffective assistance and an involuntary plea, ruling that such claims could not be raised in an untimely petition for post-conviction relief. The court did not, however, acknowledge or address Wesley's claim under Rule 32.1(f).
¶3 On review, Wesley asserts that the trial court "miscomprehend[ed]" his motion and erroneously treated it as an untimely petition for post-conviction relief rather than as a request to file a delayed, of-right petition. We agree.
After the trial court dismissed his petition for post-conviction relief, Wesley filed a motion to extend the time to file his petition for review, which the trial court granted. In its order, the court stated it was construing the motion "to be a request for permission to file a delayed notice of appeal with the Court of Appeal pursuant to Ariz. R. Crim. P. 32.1(f)." But such a motion is properly made pursuant to Rule 32.9(c). Rule 32.1(f) applies solely to "notice[s] of post-conviction relief of-right or notice[s] of appeal." It does not apply to petitions for review.
¶4 Under Rule 32.1(f), a defendant is entitled to relief if his or her "failure to file a notice of post-conviction relief of-right . . . within the prescribed time was without fault on the defendant's part." This exception to the timeliness and preclusion rules includes a situation in which the defendant believes his or her attorney will file a petition or appeal but does not. In re Acosta, 97 Ariz. 333, 335-36, 400 P.2d 328, 329-30 (1965); see also Ariz. R. Crim. P. 32.1(f) 2007 cmt. Wesley asserted such a claim, which would entitle him to a delayed proceeding at which he could present any claim cognizable under Rule 32.1, including those barred in an untimely proceeding. Taking that allegation as true, the claim is colorable and entitled Wesley to an evidentiary hearing on his assertion that counsel had promised but failed to file a timely notice of post-conviction relief. See State v. Watton, 164 Ariz. 323, 328, 793 P.2d 80, 85 (1990) ("colorable claim" one that if true might change outcome of proceeding).
¶5 Therefore, we grant review of Wesley's petition for review, and grant relief.