Opinion
2 CA-CR 2024-0105-PR
09-24-2024
The State of Arizona, Respondent, v. David Ian Woodruff, Petitioner.
Kent P. Volkmer, Pinal County Attorney By Thomas C. McDermott, Deputy County Attorney, Florence Counsel for Respondent Grand Canyon Law Group LLC, Mesa By Eva R. Fa'alogo and Angela Poliquin Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pinal County No. S1100CR202002459 The Honorable Jason R. Holmberg, Judge
Kent P. Volkmer, Pinal County Attorney By Thomas C. McDermott, Deputy County Attorney, Florence Counsel for Respondent
Grand Canyon Law Group LLC, Mesa By Eva R. Fa'alogo and Angela Poliquin Counsel for Petitioner
Vice Chief Judge Eppich authored the decision of the Court, in which Presiding Judge Sklar and Judge Brearcliffe concurred.
MEMORANDUM DECISION
EPPICH, VICE CHIEF JUDGE
¶1 Petitioner David Woodruff seeks review of the superior court's ruling summarily dismissing his petition for post-conviction relief filed pursuant to Rule 33, Ariz. R. Crim. P. "We will not disturb that ruling unless the court abused its discretion." State v. Hagerty, 255 Ariz. 112, ¶ 1 (App. 2023). Woodruff has not met his burden of establishing such abuse here.
¶2 Pursuant to a 2022 plea agreement, Woodruff was convicted of two counts of second-degree child molestation. In April 2022, the superior court suspended the imposition of sentence, placed Woodruff on lifetime supervised probation, and ordered him to register as a sex offender.
¶3 In July 2023, Woodruff filed a notice of post-conviction relief. Thereafter, he filed a petition, arguing: (a) that, in his case, lifetime probation and sex offender registration constitutes cruel and unusual punishment under both the United States and Arizona constitutions; and (b) that he had received ineffective assistance of counsel. In April 2024, the superior court summarily dismissed Woodruff's petition. The court first found that the notice had been untimely filed and that Woodruff had not shown good cause for his delay. The court then concluded that, even had Woodruff timely sought post-conviction relief, he failed to state a colorable claim for either cruel and unusual punishment or ineffective assistance of counsel. This petition for review followed.
¶4 On review, Woodruff seems to suggest the superior court erred in concluding that his claims fell under Rule 33.1(a) and were thus untimely. Rule 33.1(a) provides post-conviction relief if "the defendant's plea . . . was obtained, or the sentence was imposed, in violation of the United States or Arizona constitutions." A notice of post-conviction relief alleging a claim on this ground must be filed within ninety days after the oral pronouncement of sentence. Ariz. R. Crim. P. 33.4(b)(3)(A). However, the court must excuse an untimely Rule 33.1(a) notice "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).
¶5 Here, as Woodruff concedes, the superior court was correct that a claim of ineffective assistance of counsel falls under Rule 33.1(a). See State v. Petty, 225 Ariz. 369, ¶ 11 (App. 2010). Moreover, Woodruff's petition for post-conviction relief expressly stated that his cruel and unusual punishment argument was brought under Rule 33.1(a). Not until his reply in support of that petition did Woodruff argue that this claim was also grounded in Rule 33.1(c) and thus needed only have been brought "within a reasonable time after discovering the basis for the claim," pursuant to Rule 33.4(b)(3)(B). The court was not required to consider Woodruff's belated claim of an alternate ground for relief. See State v. Lopez, 223 Ariz. 238, ¶¶ 6-7 (App. 2009). Thus, the court did not abuse its discretion in deeming both of Woodruff's claims as having been brought under Rule 33.1(a) and subject to the limitations of Rule 33.4(b)(3)(A) and (D).
¶6 Below, the only explanations Woodruff provided for his untimely filing were that he had not obtained post-conviction counsel until March 2023 or the transcripts necessary to discover his claims until after the filing of his notice in July 2023. But, as the superior court explained, Woodruff had been advised at the April 2022 sentencing hearing that, although he waived his right to appeal by pleading guilty, he retained the right to file for post-conviction relief and could have counsel and the necessary records and transcripts provided to him at no cost if he could not afford them. Woodruff was also advised that a notice of post-conviction relief would need to be filed within ninety days of that hearing or he would lose the right to seek such relief. Thus, the court did not abuse its discretion in finding that Woodruff had failed to adequately explain why the failure to timely file a notice was not his fault or in summarily dismissing Woodruff's petition. Because this aspect of the court's ruling is legally correct, we need not address its additional bases for dismissing the petition. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015).
For the first time on review, Woodruff also states that he failed to timely file his notice because he "did not know that his sentences were cruel and unusual punishment." We do not consider this argument. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980).
¶7 Accordingly, we grant review but deny relief.