Opinion
No. 2 CA-CR 2013-0361-PR
01-22-2014
THE STATE OF ARIZONA, Respondent, v. PETER ESTEBAN SAMANIEGO, Petitioner.
Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent Peter Esteban Samaniego, Florence 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NOT FOR PUBLICATION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. CR20092004001
The Honorable Kathleen Quigley, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent
Peter Esteban Samaniego, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Judge Espinosa and Judge Vásquez concurred. ECKERSTROM, Judge:
¶1 Peter Samaniego petitions this court for review of the trial court's order summarily dismissing his successive postconviction relief proceeding brought 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).
¶2 Samaniego pled guilty to two counts of attempted molestation of a child, a second-degree dangerous crime against children, and was sentenced to an aggravated, fifteen-year prison term on the first count to be followed by lifetime probation on the second. He sought post-conviction relief, arguing he should be permitted to withdraw from the plea agreement because he was unaware the offense dates had been amended. Although he was represented by counsel, Samaniego filed a pro se memorandum in support of the petition and a reply to the state's response raising various claims, including the claim that his counsel had been ineffective and issues concerning his sentence. The trial court struck those filings, noting that "Arizona does not recognize [a] constitutional right to 'hybrid representation.'" The court denied relief after an evidentiary hearing. Samaniego did not seek review of that ruling.
¶3 Samaniego then filed a notice of post-conviction relief stating he did not wish to have counsel appointed and that he was raising claims of ineffective assistance of counsel, newly discovered evidence, and that his failure to timely file a notice of post-conviction relief was without fault on his part. He stated that his aggravated sentence was improper because the trial court had found "only one aggravat[ing] factor" and that his Rule 32 counsel had failed to bring the issue to the court's attention. The court summarily dismissed the notice on April 1, 2013, concluding Samaniego's claims were precluded and that he "[did] not have the right to effective representation in post-conviction proceedings."
¶4 Samaniego nonetheless filed a petition for postconviction relief on May 16, again claiming his aggravated sentence was unlawful because the trial court had found only one aggravating factor, the factor found by the court—harm to the victim—was improper, and his "mitigating factors [were] never considered by the trial court." He also stated he was entitled to raise a claim of ineffective assistance of Rule 32 counsel in a successive petition and that he did not "know why . . . [his] counsel [i]n his first post-conviction relief did not raise this issue at the time of [his] evidentiary hearing." Samaniego attached to his petition a motion for reconsideration requesting that the court reconsider its dismissal of his notice.
¶5 The trial court, noting that it had dismissed Samaniego's notice and that the motion for reconsideration was untimely, again stated Samaniego's claims were precluded and "affirmed" its earlier ruling dismissing Samaniego's notice. This petition for review followed.
¶6 Before we can discuss the merits of Samaniego's petition for review, we must first address the unusual procedural posture of this case. The trial court already had dismissed Samaniego's successive Rule 32 proceeding when he filed the petition for post-conviction relief and motion for reconsideration. And the motion for reconsideration was filed well past the fifteen-day time limit prescribed by Rule 32.9(a). Although the time limits of Rule 32.9(a) are not jurisdictional, a defendant still must present a valid reason justifying an untimely filing. See State v. Pope, 103 Ariz. 253, 255, 635 P.2d 846, 848 (1981). Samaniego provided no such reason—his motion for reconsideration merely summarizes the claims raised in his petition. Thus, we cannot conclude the court abused its discretion in denying Samaniego's untimely motion for reconsideration. And, because it already had dismissed Samaniego's successive notice of post-conviction relief, the court was not required to consider the claims raised in the petition for post-conviction relief. See Ariz. R. Crim. P. 32.4 (post-conviction proceeding initiated by filing notice of post-conviction relief).
¶7 Even if we construe Samaniego's petition as initiating a third post-conviction proceeding, he is not entitled to relief. Samaniego's claims regarding the propriety of his sentence are precluded because they could have been raised in his first post-conviction proceeding. Ariz. R. Crim. P. 32.2(a). Although Samaniego asserts the claims are not precluded because they constitute fundamental error, he is mistaken. See State v. Shrum, 220 Ariz. 115, ¶¶ 6-7, 23, 203 P.3d 1175, 1177, 1180 (2009) (holding illegal sentence claim precluded); Swoopes, 216 Ariz. 390, ¶ 42, 166 P.3d at 958 (fundamental error not excepted from preclusion).
Samaniego sought to raise several sentencing claims in a pro se filing in his first proceeding. But the trial court struck that filing and Samaniego did not seek review of the court's ruling.
¶8 Samaniego correctly asserted below, however, that he is entitled to raise in a successive Rule 32 proceeding a claim of ineffective assistance of counsel in his of-right proceeding. See Osterkamp v. Browning, 226 Ariz. 485, ¶ 18, 250 P.3d 551, 556 (App. 2011). But, although Samaniego referred to such a claim in his notice of post-conviction relief, he did not timely seek review of the trial court's order dismissing that notice by filing a motion for rehearing within fifteen days or by filing a petition for review with this court within thirty days. Ariz. R. Crim. P. 32.9(a), (c). Thus, he now is precluded from raising the claim. Ariz. R. Crim. P. 32.2(a).
¶9 In any event, Samaniego insists that he is not raising a claim of ineffective assistance of counsel and instead argues he is entitled to raise his sentencing claims pursuant to Rule 32.1(f). Claims under Rule 32.1(f) are not necessarily subject to preclusion. Ariz. R. Crim. P. 32.2(b). But Samaniego misreads Rule 32.1(f). That subsection permits relief when a defendant, through no fault of his own, has failed to file a timely notice of post-conviction relief; it does not apply to a defendant's failure to raise a particular claim in an earlier proceeding.
¶10 For the reasons stated, although review is granted, relief is denied.