Opinion
No. 2 CA-CR 2018-0008-PR
04-23-2018
THE STATE OF ARIZONA, Respondent, v. RAYMOND SYLVESTER ERWIN JR., Petitioner.
COUNSEL Sheila Polk, Yavapai County Attorney By Dana E. Owens, Supervising Deputy County Attorney, Prescott Counsel for Respondent Joe Saienni P.C., Phoenix By Joe Saienni Counsel for Petitioner
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NOT FOR PUBLICATION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 Yavapai County
No. P1300CR20050733
The Honorable Patricia A. Trebesch, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Sheila Polk, Yavapai County Attorney
By Dana E. Owens, Supervising Deputy County Attorney, Prescott
Counsel for Respondent Joe Saienni P.C., Phoenix
By Joe Saienni
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Raymond Erwin Jr. seeks review of the trial court's order summarily dismissing his successive and untimely petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Erwin has not shown such abuse here.
¶2 After a jury trial, Erwin was convicted of three counts of child molestation and two counts of indecent exposure. The trial court sentenced him to concurrent and consecutive prison terms totaling 24.5 years. We affirmed his convictions and sentences on appeal. State v. Erwin, No. 1 CA-CR 05-1272 (Ariz. App. Aug. 1, 2006) (mem. decision).
¶3 In January 2016, Erwin filed a notice of and petition for post-conviction relief raising a claim of newly discovered evidence that the state had withheld exculpatory material in violation of Brady v. Maryland, 373 U.S. 83 (1963). The trial court summarily denied relief, and Erwin did not seek review of that ruling.
¶4 In March 2017, Erwin filed another petition for post-conviction relief. He argued that trial counsel had been ineffective in failing to call an expert witness. He also claimed he had "recently discovered" that trial counsel had been "undergoing significant personal and emotional turmoil including an inappropriate and unethical relationship with a client and her daughter that would lead to a disciplinary suspension." He asserted counsel's "emotional, ethical, professional, and personal problems distracted him to the point" that he failed to engage an expert witness. The trial court again summarily dismissed the petition, concluding Erwin had not been diligent in discovering counsel's disciplinary records, those records did not show counsel had personal difficulties during his representation of Erwin, and, in any event, Erwin had not demonstrated counsel had been ineffective. This petition for review followed.
¶5 On review, Erwin again argues trial counsel was ineffective and he has timely raised the claim because he was "incompetent to identify" his trial counsel's ineffective assistance and, thus, is not required to raise the claim until it is identified by "subsequent effective counsel." In support of this latter argument, he relies on State v. Diaz, 236 Ariz. 361 (2014), and State v. Goldin, 239 Ariz. 12 (App. 2015), asserting those cases support the notion that "[u]ntil subsequent counsel identifies previous counsel's ineffectiveness, no ineffective assistance of counsel claim can arise."
¶6 Erwin's argument not only ignores the timeliness requirements of Rule 32.4(a)(2), it ignores the facts and reasoning of Diaz and Goldin. Erwin was required to seek post-conviction relief "no later than 30 days after the issuance of the order and mandate in the direct appeal, whichever is later." Ariz. R. Crim. P. 32.4(a)(2)(D). Because he did not do so, he is permitted only to raise claims pursuant to Rule 32.1(d) through (h). Ariz. R. Crim. P. 32.4(a)(2)(A). Erwin has raised no such claim.
¶7 Nor do Diaz and Goldin create an exception to the timeliness requirement, as Erwin seems to suggest. In Diaz, the petitioner had repeatedly sought post-conviction relief, but counsel had failed to file petitions in those proceedings, resulting in dismissal. 236 Ariz. 361, ¶¶ 3-4. Thus, our supreme court concluded, in this "peculiar scenario," Diaz's claim of ineffective assistance should not be precluded because he did not waive that claim but, instead, had timely filed a notice of post-conviction relief and the claim went unadjudicated "through no fault of his own." Id. ¶¶ 10, 12.
¶8 Similarly, in Goldin, we concluded the defendant's "action or inaction" did not waive his Rule 32 rights because his counsel had misinformed him about "the functional length of his sentence" and about how to seek post-conviction relief from what counsel perceived was the miscalculation of that sentence by the Arizona Department of Corrections. 239 Ariz. 12, ¶¶ 20-21, 23. As a result, Goldin did not timely seek post-conviction relief and, when he finally did so, he raised a claim that was not colorable under Rule 32. Id. ¶¶ 4-5, 21. Thus, we determined, Goldin was entitled to raise a claim pursuant to Rule 32.1(f) that his failure to timely seek post-conviction relief was without fault on his part. Id. ¶ 25.
¶9 Diaz, unlike Erwin, timely sought post-conviction relief. Diaz, 236 Ariz. 361, ¶ 10. And, unlike Goldin, nothing in the record suggests Erwin failed to timely seek appropriate post-conviction relief because of trial counsel's advice or conduct. His argument at its core is that he only recently discovered a basis for relief because he only recently decided to consult an attorney. Even had he asserted a claim under Rule 32.1(f), he would not be entitled to relief. See State v. Poblete, 227 Ariz. 537, ¶ 7 (App. 2011). The trial court did not err in summarily dismissing Erwin's petition.
Erwin's argument is not only legally baseless, it appears to be disingenuous. Although the petition in his first Rule 32 proceeding was filed by Erwin, the supporting legal argument was filed by counsel. If Erwin means to suggest that his first Rule 32 counsel was also ineffective, that claim is not cognizable under Rule 32. See State v. Escareno-Meraz, 232 Ariz. 586, ¶ 4 (App. 2013). --------
¶10 We grant review but deny relief.