Opinion
No. 1 CA-CR13-0785 PRPC
06-02-2015
STATE OF ARIZONA, Respondent, v. EDWARD WILLIAM KRULJAC, II, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Diane Meloche Counsel for Respondent Edward William Kruljac, II, Florence Petitioner
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Petition for Review from the Superior Court in Maricopa County
No. CR 1992-009686
The Honorable Lisa Daniel Flores, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent
Edward William Kruljac, II, Florence
Petitioner
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris, Judge Patricia A. Orozco, and Judge Kent E. Cattani delivered the decision of the Court.
PER CURIAM:
¶1 Edward William Kruljac, II, seeks review of the summary dismissal of his notice of post-conviction relief filed under Arizona Rule of Criminal Procedure 32. For reasons that follow, we grant review but deny relief.
¶2 On May 28, 2010, Kruljac pled guilty to one count of child molestation and two counts of attempted child molestation. On July 13, 2010, the superior court sentenced Kruljac in accordance with the terms of the plea agreement to 12 years' imprisonment on the child molestation conviction, to be followed by lifetime supervised probation for each conviction of attempted child molestation.
¶3 On August 28, 2013, Kruljac filed a notice of post-conviction relief asserting a claim of actual innocence and requesting DNA testing under Arizona Revised Statutes ("A.R.S.") § 13-4240. The superior court dismissed the notice because Kruljac failed to set forth any factual or legal basis to find that "evidence is still in existence and is in a condition that allows deoxyribonucleic acid testing to be conducted" as required by § 13-4240(B)(2).
Absent material revisions after the relevant date, we cite a statute's current version.
¶4 In his petition for review, Kruljac argues that the superior court erred by dismissing his notice without appointing counsel or providing him with various requested documents. We review the summary dismissal of a post-conviction relief proceeding for an abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17, 146 P.3d 63, 67 (2006). We may uphold the ruling on any basis supported by the record. State v. Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 809 (1987).
¶5 A petition for DNA testing under A.R.S. § 13-4240 "differs from a petition for postconviction relief under Rule 32 and its statutory counterparts." State v. Gutierrez, 229 Ariz. 573, 577, ¶ 21, 278 P.3d 1276, 1280 (2012). In Gutierrez, the Arizona Supreme Court clarified that a petition for testing could be filed first, and, if the results of the testing were favorable, the petitioner could proceed either with a § 13-4240 hearing or by filing a Rule 32 notice seeking post-conviction relief. 229 Ariz. at 577-78, ¶¶ 23-26, 278 P.3d at 1280-81.
¶6 Here, Kruljac requested DNA testing within his Rule 32 notice. A request for DNA testing may be made "[a]t any time." A.R.S. § 13-4240(A). Moreover, although Kruljac's Rule 32 notice was filed more than three years after his sentencing, a claim of actual innocence may be raised even in an untimely notice of post-conviction relief. See Ariz. R. Crim. P. 32.4(a), 32.1(h). An untimely notice, however, must set forth "meritorious reasons . . . substantiating the [properly-raised] claim"; if it fails to do so, "the notice shall be summarily dismissed." Ariz. R. Crim. P. 32.2(b).
Kruljac also checked a box on the notice of post-conviction relief indicating he was asserting a claim of ineffective assistance of counsel. Because a claim of ineffective assistance of counsel is cognizable under Rule 32.1(a), however, such a claim may not be raised in an untimely notice of post-conviction relief. See Ariz. R. Crim. P. 32.4(a); State v. Petty, 225 Ariz. 369, 373, ¶ 11, 238 P.3d 637, 641 (App. 2010).
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¶7 As the superior court found, Kruljac's notice failed to note any evidence to be tested, much less any existing evidence in proper condition to allow DNA testing. See A.R.S. § 13-4240(B)(2). Because Kruljac did not make the showing required for post-conviction DNA testing, the notice failed to set forth meritorious reasons substantiating a claim of actual innocence. See Ariz. R. Crim. P. 32.2(b). Accordingly, the superior court did not err by summarily dismissing the notice of post-conviction relief.
¶8 Finally, we note that, because there is no time limit on requests for DNA testing under § 13-4240, Kruljac will not be precluded from seeking DNA testing in the future if he complies with all of the statutory requirements for such testing. And if he obtains favorable test results, he can seek a hearing to determine appropriate relief. A.R.S. § 13-4240(K); Gutierrez, 229 Ariz. at 578, ¶ 27, 278 P.3d at 1281. At this time, however, Kruljac has not shown that he is entitled to any relief.
¶9 Accordingly, we grant review and deny relief.