Opinion
No. 2 CA-CR 2017-0158-PR
08-17-2017
THE STATE OF ARIZONA, Respondent, v. JOSE RAUL JUAREZ-ORCI, Petitioner.
COUNSEL Robert A. Kerry, Tucson 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NOT FOR PUBLICATION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. 31.24. Petition for Review from the Superior Court in Pima County
No. CR20121629001
The Honorable Kenneth Lee, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Robert A. Kerry, Tucson
Counsel for Petitioner
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Staring and Judge Kelly concurred. ESPINOSA, Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court. --------
¶1 Jose Juarez-Orci seeks review of the trial court's order denying his untimely and successive petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court clearly abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7, 353 P.3d 847, 848 (2015). Juarez-Orci has not met his burden of demonstrating such abuse here.
¶2 Juarez-Orci was convicted after a jury trial of attempted second-degree murder and five counts of aggravated assault. State v. Juarez-Orci, 236 Ariz. 520, ¶ 1, 342 P.3d 856, 857-58 (App. 2015). He was sentenced to concurrent prison terms, the longest of which was 10.5 years for attempted second-degree murder. Id. ¶ 10. On appeal, this court reversed his conviction for attempted second-degree murder but affirmed his remaining convictions and sentences, id. ¶ 24, making Juarez-Orci's longest remaining sentence his 7.5-year prison term for aggravated assault with a deadly weapon or dangerous instrument, domestic violence. The trial court later granted the state's motion to dismiss the attempted murder charge. Juarez-Orci then sought post-conviction relief, claiming his trial counsel had been ineffective. The trial court denied relief, and we denied relief on review. State v. Juarez-Orci, No. 2 CA-CR 2016-0285-PR (Ariz. App. Nov. 23, 2016) (mem. decision).
¶3 Juarez-Orci then filed a second notice of and petition for post-conviction relief arguing his sentences on two counts were improper and that his appellate and previous Rule 32 counsel had been ineffective for failing to raise the issue. He further asserted his sentencing claim was not subject to preclusion because it had not previously been raised and he had not waived it. The trial court summarily denied relief, determining Juarez-Orci's sentencing claim was precluded because he had not raised it on appeal or in his previous post-conviction proceeding, and that he was not entitled to raise a claim of ineffective Rule 32 counsel. This petition for review followed.
¶4 On review, Juarez-Orci again argues two of his sentences are improper and that the claim is not subject to preclusion. Citing Rule 32.2(a)(3) and its accompanying comment, he argues he did not waive his claim by failing to raise it previously because it was of sufficient constitutional magnitude to require his knowing, voluntary, and intelligent waiver.
¶5 Rule 32.2(a)(3) precludes a defendant from raising in any Rule 32 proceeding a claim "[t]hat has been waived at trial, on appeal, or in any previous collateral proceeding." The comment to that rule states, however, that "[i]f an asserted claim is of sufficient constitutional magnitude, the state must show that the defendant 'knowingly, voluntarily and intelligently' waived the claim" for preclusion to apply, citing Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (2002). Ariz. R. Crim. P. 32.2(a)(3) cmt.
¶6 But, as this court has explained, the waiver principles discussed in the comment to Rule 32.2(a)(3) and Smith do not apply to untimely proceedings. See State v. Lopez, 234 Ariz. 513, ¶¶ 7-8, 323 P.3d 1164, 1166 (App. 2014). And this successive proceeding is patently untimely. Ariz. R. Crim. P. 32.4(a). Thus, Juarez-Orci was only entitled to raise claims pursuant to Rule 32.1(d) through (h). Ariz. R. Crim. P. 32.4(a). His claim of an illegal sentence (and his related claim the illegal sentence violated his due process rights) fall within Rule 32.1(a) and (c) and thus cannot be raised in this proceeding. The trial court therefore did not err in summarily rejecting them. See Lopez, 234 Ariz. 513, ¶ 10, 323 P.3d at 1166 (reviewing court will affirm trial court's ruling if correct for any reason).
¶7 Juarez-Orci additionally repeats his argument that his appellate and Rule 32 counsel were ineffective for failing to raise his sentencing claim. But his claim of ineffective assistance of appellate counsel cannot be raised in this untimely proceeding. Ariz. R. Crim. P. 32.1(a), 32.4(a). And, as the trial court correctly pointed out, a non-pleading defendant like Juarez-Orci is not entitled to raise a claim of ineffective assistance of Rule 32 counsel. State v. Escareno-Meraz, 232 Ariz. 586, ¶¶ 4-6, 307 P.3d 1013, 1014 (App. 2013).
¶8 We grant review but deny relief.