Opinion
No. 2 CA-CR 2014-0210-PR
10-15-2014
THE STATE OF ARIZONA, Respondent, v. JOHNATHAN CHARLES POE, Petitioner.
COUNSEL Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent Johnathan C. Poe, 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Not For Publication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. CR20113668001
The Honorable Jane L. Eikleberry, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent
Johnathan C. Poe, San Luis
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. KELLY, Presiding Judge:
¶1 Johnathan Poe petitions this court for review of the trial court's order summarily dismissing his untimely notice of 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). Poe has not met his burden of demonstrating such abuse here.
¶2 Poe pled guilty to two counts of armed robbery and was sentenced to consecutive, nine-year prison terms on each count. Approximately seven months later, Poe filed a pro se petition for post-conviction relief asserting (1) he had not been advised by counsel "that he was signing a plea for a crime of dangerous nature" and (2) he had been improperly sentenced. On the form petition, he also checked boxes to indicate he was raising other claims, including that his attorney had failed "to file a timely notice of appeal after being instructed to do so." He did not explain those claims. The trial court summarily dismissed the petition as untimely. The court also rejected Poe's motion for reconsideration, in which he claimed that counsel had "assured [Poe] he would file the . . . Rule 32 which he failed to do" and that counsel "misle[d]" him into pleading guilty, apparently by promising he would receive a shorter sentence than he did.
¶3 Four months later, Poe filed a notice of post-conviction relief claiming, pursuant to Rule 32.1(f), that his failure to file a timely notice was without fault on his part—again asserting that counsel had promised to file his notice. He also claimed that counsel had been ineffective, asserting counsel had promised him he would receive a "mitigated sentence" of "not . . . more than 10 years" because of his mental health history. The trial court summarily dismissed the notice as untimely. Poe did not seek review of that ruling pursuant to Rule 32.9(c).
¶4 In March 2014, Poe filed another notice of post-conviction relief repeating his claim that his counsel had promised and failed to timely initiate his first post-conviction proceeding. He also asserted his trial counsel had been ineffective during the "plea stage," stating he had pled guilty based on counsel's assurance that he would receive concurrent sentences. Poe further asserted this latter claim was not subject to preclusion because it was of sufficient constitutional magnitude to require a knowing, voluntary, and intelligent waiver, citing Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (2002).
¶5 The trial court appointed counsel. Poe then filed a motion to "dismiss" counsel and requested the court "grant [him] pro per status" because he had indicated in his notice that he did not want counsel appointed. The court relieved counsel of further responsibility in the proceeding and, in the same order, it summarily dismissed Poe's notice as untimely. Poe then filed a motion for reconsideration, which the court denied. This petition for review followed.
¶6 On review, Poe repeats his claim pursuant to Rule 32.1(f) that his failure to timely initiate his first post-conviction proceeding was without fault on his part. Poe is correct that this type of claim is not subject to preclusion and may be raised in an untimely post-conviction proceeding like this one. Ariz. R. Crim. P. 32.1(f), 32.2(b), 32.4(a). However, Poe's claim under Rule 32.1(f) was conclusively adjudicated in his second post-conviction proceeding, and Poe did not seek review of that ruling. He therefore has waived appellate review of the claim. See Ariz. R. Crim. P. 32.9(c)(1). Moreover, when raising a claim excepted from preclusion by Rule 32.2(a) or from the timeliness requirement of Rule 32.4, a defendant must provide in his or her notice "the reasons for not raising the claim in the previous petition or in a timely manner." Ariz. R. Crim. P. 32.2(b). Poe has not met this requirement—as we have noted, he raised this claim in a previous proceeding and he has not explained why he failed to seek review of the trial court's ruling. ¶7 Poe also repeats his claim of ineffective assistance of counsel, again citing Stewart for the proposition that he may raise the claim for the first time in an untimely proceeding, and asserting that he did not knowingly, voluntarily, and intelligently waive his right to the effective assistance of counsel. In Stewart, our supreme court determined that claims of sufficient constitutional magnitude—that is, claims involving rights that require a knowing, voluntary, and intelligent waiver—are not subject to preclusion pursuant to Rule 32.2(a)(3). 202 Ariz. 446, ¶ 12, 46 P.3d at 1071. But, as this court explained in State v. Lopez, in an untimely post-conviction proceeding like this one, a claim not falling within Rule 32.1(d) through (h) is barred irrespective of whether a defendant has knowingly, voluntarily, and intelligently waived it. 234 Ariz. 513, ¶¶ 6-8, 323 P.3d 1164, 1166 (App. 2014). Because Poe's notice is patently untimely, Stewart does not apply. And a claim of ineffective assistance of counsel does not fall within Rule 32.1(d) through (h) but instead is encompassed by Rule 32.1(a). See State v. Petty, 225 Ariz. 369, ¶ 11, 238 P.3d 637, 641 (App. 2010). Thus, the claim is barred by Rule 32.4(a). ¶8 Although we grant the petition for review, we deny relief.
Poe asserts in passing that the trial court erred by first "granting commencement" of his post-conviction proceeding but then dismissing the proceeding "because defendant requested in a subsequent motion" that counsel be relieved of responsibility. He does not develop this argument in any meaningful way and we do not address it. Cf. State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (failure to develop legal argument waives argument on review).