Statev.Larson

ARIZONA COURT OF APPEALS DIVISION TWOOct 12, 2018
No. 2 CA-CR 2018-0174-PR (Ariz. Ct. App. Oct. 12, 2018)

No. 2 CA-CR 2018-0174-PR

10-12-2018

THE STATE OF ARIZONA, Respondent, v. JOSHUA LEE LARSON, Petitioner.

COUNSEL Kent P. Volkmer, Pinal County Attorney By Thomas C. McDermott, Appellate Bureau Chief, Florence Counsel for Respondent Joshua Lee Larson, 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Pinal County
No. S1100CR201301732
The Honorable Kevin D. White, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL Kent P. Volkmer, Pinal County Attorney
By Thomas C. McDermott, Appellate Bureau Chief, Florence
Counsel for Respondent
Joshua Lee Larson, Buckeye
In Propria Persona

MEMORANDUM DECISION

Chief Judge Eckerstrom authored the decision of the Court, in which Judge Brearcliffe and Judge Vásquez concurred. ECKERSTROM, Chief Judge:

¶1 Petitioner Joshua Larson seeks review of the trial court's order dismissing his untimely petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We review a court's denial of post-conviction relief for an abuse of discretion. State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). We find none here and, accordingly, although we grant review, we deny relief.

¶2 Pursuant to a plea agreement, Larson was convicted in October 2014 of aggravated assault and leaving the scene of a serious injury collision. The trial court sentenced him to prison terms of 7.5 years for the first charge, and five years for the second, to be served consecutively.

¶3 In December 2017, Larson filed a notice of post-conviction relief, and appointed counsel filed a petition alleging the plea colloquy at his change of plea hearing had been insufficient, because the trial court failed to inform him of certain constitutional rights, such as his right of confrontation, his right to compel witnesses, and his right against compelled self-incrimination. Without suggesting the waiver of these rights was material to his decision to plead guilty, the petition also alleged trial counsel was ineffective in failing to object to the court's recitation of constitutional rights. Cf. State v. Murdaugh, 209 Ariz. 19, ¶ 47 (2004) (guilty plea not unknowing where defendant not informed he would be sentenced by jury; "nothing in this record indicates that [defendant]'s decision to plead guilty was influenced by whether a judge or a jury would decide" sentence).

¶4 Relying on this court's decision in State v. Tiznado, 23 Ariz. App. 483, 484-85 (1975), vacated, 112 Ariz. 156, 156 (1975), Larson argued, "The remedy for failing to comply with Ariz. R. Crim. P. 17.2 is to set aside the guilty plea and sentence." But in vacating our decision in that case, our supreme court stated, "[W]e do not believe that such an awareness [of constitutional rights waived by a guilty plea] can only be demonstrated in an oral exchange between the court and the accused." Tiznado, 112 Ariz. at 157. The court then affirmed Tiznado's convictions concluding, "From the entire record before us, it is clear that the defendant made a knowing and voluntary waiver of his rights." Id.

¶5 The petition also did not address Larson's delay in filing his notice more than three years after judgment was entered, and the trial court dismissed his claims as untimely, and therefore "procedurally precluded." See Ariz. R. Crim. P. 32.4(a)(2)(A), (D); 32.6(d)(1). On review, Larson repeats the arguments made in his petition below, and he also asserts his delay in filing for post-conviction relief was due to difficulties in accessing a law library. But Larson was properly advised of the Rule 32 filing deadlines at sentencing; insofar as his assertion might be considered a claim for relief under Rule 32.1(f), he did not raise such a claim below. And this court will not address issues raised for the first time on review. State v. Ramirez, 126 Ariz. 464, 468 (App. 1980).

¶6 To the extent Larson restates the arguments in his petition below, the trial court correctly identified his claims as untimely and resolved them correctly in a thorough, well-reasoned minute entry, which we adopt. State v. Whipple, 177 Ariz. 272, 274 (App. 1993) (when trial court has correctly ruled on issues raised "in a fashion that will allow any court in the future to understand the resolution[, n]o useful purpose would be served by this court rehashing the trial court's correct ruling in a written decision"). We add only that Larson also failed to state a colorable claim for relief under the correct legal standard for assessing a knowing and intelligent plea, as set forth in Tiznado, 112 Ariz. at 157.

¶7 For the foregoing reasons, we grant review, but we deny relief.

See Ariz. R. Crim. P. 32.1(f) (ground for relief when "failure to file a notice of post-conviction relief of-right or a notice of appeal within the required time was not the defendant's fault); see also Ariz. R. Crim. P. 32.1(f) cmt. ("provision includes . . . situation in which" defendant not advised of appeal rights or "intended to appeal and thought timely appeal had been filed by his attorney when in reality it had not").