Opinion
2 CA-CR 2013-0201-PR
08-13-2013
THE STATE OF ARIZONA, Respondent, v. LESLIE HOLLINGSWORTH JR., Petitioner.
Leslie Hollingsworth In Propria Persona
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF MARCIOPA COUNTY
Cause No. CR2005138947001DT
Honorable Margaret R. Mahoney, Judge
REVIEW GRANTED; RELIEF DENIED
Leslie Hollingsworth Kingman
In Propria Persona
ESPINOSA, Judge. ¶1 Petitioner Leslie Hollingsworth seeks review of the trial court's summary dismissal of his successive proceeding for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We grant review but deny relief. ¶2 Pursuant to a plea agreement, Hollingsworth was convicted of possession of a narcotic drug for sale, having one historical prior felony conviction, and was sentenced to an enhanced, aggravated, sixteen-year prison term. This is Hollingsworth's third Rule 32 proceeding since his conviction and sentence. In this most recent notice and petition for post-conviction relief, he claimed his trial and Rule 32 counsel had been ineffective in failing to challenge the admissibility of evidence obtained through an allegedly illegal search. He maintained these claims are based on the "'newly discovered' evidence" of police reports trial counsel provided to him in December 2011, within days of Hollingsworth's request. According to Hollingsworth's petition below, the trial court also "committed sentencing error" when it imposed an aggravated sentence, and he "may be actually innocent, based upon the numerous alleged constitutional violations." ¶3 The trial court summarily denied Hollingsworth's petition in a detailed ruling, explaining that his claims of ineffective assistance of counsel and sentencing error were precluded as untimely under Rule 32.4(a), and also had been either waived by his failure to raise them in a previous Rule 32 proceeding, see Ariz. R. Crim. P. 32.2(a)(3), or finally adjudicated and denied on their merits in one of those proceedings, see Ariz. R. Crim. P. 32.2(a)(2). The court also concluded that 1) Hollingsworth's recent review of case documents did not constitute newly discovered material facts that would support a non-precluded claim for relief pursuant to Rule 32.2(e) and 2) Hollingsworth had "not provided any facts or law" to support a claim, pursuant to Rule 32.2(h), "that he was actually innocent of the crime of which he was convicted and that no reasonable fact finder would have found him guilty." This petition for review followed. ¶4 On review, Hollingsworth restates his argument that trial counsel was ineffective in failing to challenge police officers' execution of a search warrant for the vehicle he was driving. We agree with the trial court that Hollingsworth's Fourth Amendment claim is waived—not only because he failed to raise it in his first two Rule 32 proceedings, which is a sufficient basis for preclusion—but also because he pleaded guilty. See State v. Moreno, 134 Ariz. 199, 200, 655 P.2d 23, 24 (App. 1982) (pleading defendant waives right to appeal "all nonjurisdictional defenses, errors and defects occurring prior to the plea proceedings"), disapproved on other grounds by State ex rel. Dean v. Dolny, 161 Ariz. 297, 778 P.2d 1193 (1989); see also Tollett v. Henderson, 411 U.S. 258, 267 (1973) ("When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea."). ¶5 Similarly, the trial court is correct that Hollingsworth's claims of ineffective assistance of trial and Rule 32 counsel are barred as untimely and by his failure to raise the claims in an earlier proceeding. And the court correctly concluded that Hollingsworth's recent review of case documents does not constitute the "[n]ewly discovered material facts" required for relief under Rule 32.1(e). ¶6 We review a trial court's summary denial of post-conviction relief for an abuse of discretion. State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006). We find none here. Instead, the court clearly identified, thoroughly analyzed, and correctly resolved the issues Hollingsworth presented below and preserved for review, and we need not restate that analysis. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). Because the court correctly ruled on the issues Hollingsworth raised "in a fashion that will allow any court in the future to understand the resolution," id., we adopt its order. Accordingly, although we grant review, relief is denied.
Although the trial court correctly noted that Hollingsworth previously had raised claims of ineffective assistance of trial and Rule 32 counsel, the particular errors or omissions by counsel alleged in this proceeding have not been raised or addressed on their merits. To the extent the trial court's order might suggest otherwise, we clarify, for the purpose of this court's ruling, that these particular claims are waived and precluded by Rule 32.2(a)(3). Hollingsworth also contends, for the first time on review, that either Rule 32 or trial counsel had been ineffective in failing to send him his "whole file" during Rule 32 proceedings, apparently referring to Rule 32 counsel's August 2007 transmittal of "the entire [post-conviction relief] record [then] in [her] possession . . . [including] transcripts." And, in an amendment to his petition for review filed July 29, 2013, Hollingsworth argues trial counsel was ineffective because he did not move to suppress the evidence on the ground that it was discovered pursuant to a search warrant related to home invasion charges that ultimately were dismissed. Our review is limited to those "issues . . . decided by the trial court," Ariz. R. Crim. P. 32.9(c)(1)(ii), and we do not consider issues raised for the first time on review, State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980). Accordingly, we do not consider the merits of these new claims or whether, like Hollingsworth's other ineffective assistance claims, they are precluded.
PHILIP G. ESPINOSA, Judge CONCURRING: ________
VIRGINIA C. KELLY, Presiding Judge
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PETER J. ECKERSTROM, Judge