Opinion
No. 2 CA-CR 2014-0220-PR
09-30-2014
THE STATE OF ARIZONA, Respondent, v. DAVID YULO MARTINEZ III, Petitioner.
David Y. Martinez III, San Luis 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NOT FOR PUBLICATION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 Pima County
No. CR20083774001
The Honorable Jane L. Eikleberry, Judge
REVIEW GRANTED; RELIEF DENIED
David Y. Martinez III, San Luis
In Propria Persona
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Brammer concurred. VÁSQUEZ, Judge:
The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 David Martinez petitions for review of the trial court's summary dismissal of his successive, untimely petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We grant review, but we deny relief.
¶2 After a jury trial, Martinez was convicted of four counts each of aggravated assault with a deadly weapon and armed robbery. The trial court imposed a combination of consecutive and concurrent, aggravated sentences totaling ninety years' imprisonment. This court affirmed Martinez's convictions and sentences on appeal. State v. Martinez, No. 2 CA-CR 2009-0186 (memorandum decision filed Apr. 29, 2010).
¶3 In his first Rule 32 proceeding, Martinez raised numerous claims of ineffective assistance of trial and appellate counsel. The trial court denied relief and, on review of that ruling, this court denied relief as well. State v. Martinez, No. 2 CA-CR 2012-0320 (memorandum decision filed Dec. 21, 2012). Martinez filed a successive notice of post-conviction relief in August 2013. In his pro se petition, Martinez alleged claims of ineffective assistance of trial counsel and other trial errors; he also relied on Martinez v. Ryan, ___ U.S.___, 132 S. Ct. 1309 (2012), to assert his first Rule 32 counsel had been ineffective in failing to pursue these claims.
¶4 The trial court summarily denied relief and dismissed Martinez's petition. Citing State v. Escareno-Meraz, 232 Ariz. 586, 307 P.3d 1013 (App. 2013), the court explained "[a] non-pleading defendant" like Martinez "has no constitutional right to effective Rule 32 counsel" and, therefore, his claim of ineffective assistance of Rule 32 counsel "is not a cognizable ground for relief" under Rule 32. The court further found Martinez's other claims precluded because they either had been raised or could have been raised in a previous proceeding. See Ariz. R. Crim. P. 32.2(a). This petition for review followed.
¶5 On review, Martinez claims the trial court's ruling "involved an unreasonable application" of Martinez and failed to address claims related to his rejection of a plea offer and prosecutorial misconduct. We review a summary denial of post-conviction relief for an abuse of discretion, State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006), and we find none here. The court clearly identified Martinez's claims and resolved them correctly based on thorough, well-reasoned analysis, which we need not repeat. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993); see also Escareno-Meraz, 232 Ariz. 586, ¶6, 307 P.3d at 1014.
¶6 To the extent Martinez argues the trial court failed to address his allegations of error in plea proceedings and prosecutorial misconduct, he had raised these issues below only in the context of his claim of ineffective assistance of Rule 32 counsel, as "issues missing from [first] Rule 32 Counsel['s]" petition for post-conviction relief. We do not address "issues first presented in a petition for review by this Court." State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980). We note, however, that these claims, like the claims of ineffective assistance of counsel specifically addressed in the court's ruling, are precluded. See Ariz. R. Crim. P. 32.2(a); see also Ariz. R. Crim. P. 32.2(c) ("[A]ny court on review of the record may determine and hold that an issue is precluded . . . .").
¶7 For the foregoing reasons, although we grant review, we deny relief.