Opinion
No. 2 CA-CR 2013-0539-PR
04-18-2014
THE STATE OF ARIZONA, Respondent, v. ARIEL VALENZUELA, Petitioner.
Ariel Valenzuela, Buckeye 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NOT FOR PUBLICATION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 Maricopa County
No. CR2009152791001SE
The Honorable Sherry K. Stephens, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Ariel Valenzuela, Buckeye
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Ariel Valenzuela petitions this court for review of the trial court's order summarily dismissing his successive petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Valenzuela has not met his burden of demonstrating such abuse here.
¶2 Valenzuela pled guilty to burglary, two counts of kidnapping, two counts of armed robbery, and three counts of misconduct involving weapons. He was sentenced to a combination of consecutive and concurrent, presumptive prison terms totaling 41.5 years. He filed a notice of post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but found no "colorable claim upon which to base a Petition for Post-Conviction Relief."
¶3 The court granted leave for Valenzuela to file a pro se petition, but it dismissed the proceeding when he failed to file a petition within the time allotted. Valenzuela then sought an extension of time to file his pro se petition, which the court granted, reinstating the proceeding and setting a new deadline for filing a pro se petition. When Valenzuela again failed to file a petition, the court dismissed the proceeding in July 2012.
¶4 In August 2012, Valenzuela filed a notice of and pro se petition for post-conviction relief, arguing that his sentences were illegal, his plea was defective because it was not in writing, his plea had been coerced, and his trial and Rule 32 counsel had been ineffective. He further claimed he was entitled to relief pursuant to Rule 32.1(e) because he had only recently discovered "how to file a petition on his own" and that Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399 (2012), and Massaro v. United States, 538 U.S. 500 (2003), constituted a significant change in the law permitting him to raise a claim of ineffective assistance of counsel at any time. The trial court summarily dismissed the petition, concluding that the bulk of Valenzuela's claims could not be raised in an untimely, successive petition and that Frye did not apply.
¶5 On review, Valenzuela contends the court erred in summarily rejecting his claims of ineffective assistance of counsel, arguing that Massaro permits him to raise a claim of ineffective assistance of counsel at any time and that Frye is "retroactive" and "clarifie[s] the importance of counsel in the plea bargaining arena." As a pleading defendant, Valenzuela was required to initiate his second post-conviction proceeding "within thirty days after the issuance of the final order . . . in [his] first petition for post-conviction relief." Ariz. R. Crim. P. 32.4(a). Because he failed to do so, he was permitted to raise only those claims falling under Rule 32.1(d), (e), (f), (g), or (h). Id. A claim of ineffective assistance of counsel falls under Rule 32.1(a). See Osterkamp v. Browning, 226 Ariz. 485, ¶ 10, 250 P.3d 551, 554 (App. 2011). Thus, Valenzuela was not permitted to raise that claim in a second, untimely proceeding.
An of-right petitioner who files a timely, successive notice of post-conviction relief is entitled to appointed counsel and to raise a claim that counsel in his or her first proceeding was ineffective. See Ariz. R. Crim. P. 32.4(a), (c)(2); Osterkamp, 226 Ariz. 485, ¶¶ 10, 15-16, 250 P.3d at 554-55. But we find no authority suggesting a defendant is similarly entitled when he or she does not timely file a notice of post-conviction relief.
¶6 Massaro does not alter our conclusion. Nothing in that case supports the proposition that a claim of ineffective assistance can be raised at any time. The Court in Massaro determined only that a claim of ineffective assistance of counsel could be raised on collateral review even when not raised on direct appeal. 538 U.S. at 508-09. It did not suggest that such claims need not otherwise be timely.
¶7 We also find unavailing Valenzuela's claim that he is entitled to relief because Frye constitutes a significant change in the law pursuant to Rule 32.1(g). Although a claim pursuant to Rule 32.1(g) can be raised in an untimely proceeding, Ariz. R. Crim. P. 32.4(a), Frye is not a significant change in the law. In Frye and Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376 (2012), the Supreme Court acknowledged a defendant has a right to effective representation by counsel during plea negotiations. See Lafler, ___ U.S. at ___, 132 S. Ct. at 1384; Frye, ___ U.S. at ___, 132 S. Ct. at 1407-08. But it has long been the law in Arizona that a defendant is entitled to effective representation in the plea context. See State v. Donald, 198 Ariz. 406, ¶¶ 9, 14, 10 P.3d 1193, 1198, 1200 (App. 2000). Valenzuela therefore could have raised such a claim in his first proceeding, and, accordingly, any claim of ineffective assistance of trial counsel is precluded. See Ariz. R. Crim. P. 32.1(g), 32.2(a)(3); State v. Poblete, 227 Ariz. 537, ¶ 8, 260 P.3d 1102, 1105 (App. 2011) (significant change in law "'requires some transformative event, a clear break from the past'"), quoting State v. Shrum, 220 Ariz. 115, ¶ 15, 203 P.3d 1175, 1178 (2009).
¶8 For the reasons stated, although we grant review, relief is denied.