State v. Bartels ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
DOUGLAS JAMES BARTELS, Petitioner.
No. 1 CA-CR 13-0834 PRPC
FILED 4-21-2015
Appeal from the Superior Court in Maricopa County
No. CR2008-168021-001
The Honorable Maria del Mar Verdin, Retired Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Douglas James Bartels, Florence
Petitioner
STATE v. BARTELS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judges Andrew W. Gould and Peter B. Swann joined.
H O W E, Presiding Judge:
¶1 Petitioner Douglas James Bartels petitions this Court for
review from the dismissal of his petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
and deny relief.
¶2 Bartels pled guilty to kidnapping, sexual conduct with a
minor, and two counts of attempted sexual conduct with a minor, all
dangerous crimes against children. The trial court sentenced him to an
aggregate term of thirty years’ imprisonment for kidnapping and sexual
conduct with a minor and placed him on lifetime probation for the
remaining counts. Bartels now seeks review of the summary dismissal of
his third petition for post-conviction relief. We have jurisdiction pursuant
to Arizona Rule of Criminal Procedure 32.9(c).
¶3 Bartels argues that his trial counsel was ineffective in failing
to adequately investigate the case and in pressuring him to accept the plea
offers. He claims his “of-right” post-conviction relief counsel was also
ineffective, but for reasons Bartels does not identify. Bartels further
contends that the trial court erred in imposing lifetime probation and in
making other unidentified errors; that the grand jury proceedings had
deficiencies; and that the prosecutor engaged in unidentified misconduct.
¶4 We deny relief. Bartels could have raised all of these issues in
a prior post-conviction relief proceeding. Any claim a defendant could have
raised in an earlier post-conviction relief proceeding is precluded. Ariz. R.
Crim. P. 32.2(a). None of the exceptions under Rule 32.2(b) apply. Bartels
also waived any claims regarding the grand jury proceedings and the
prosecutor’s pre-plea conduct when he pled guilty. A plea agreement
waives all non-jurisdictional defenses, errors, and defects that occurred
before the plea. State v. Moreno, 134 Ariz. 199, 200, 655 P.2d 23, 24 (App.
1982), disapproved of on other grounds by State ex rel. Dean v. Dony, 161 Ariz.
297, 778 P.2d 1193 (1989). While Bartels claims that all of these issues are
timely because they are based on newly discovered evidence, the “newly
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STATE v. BARTELS
Decision of the Court
discovered evidence” consists of Bartels becoming aware of these issues
after he had a “prison legal assistant” review his file in 2013. This is not
sufficient to present a colorable claim of newly discovered evidence
pursuant to Rule 32.1(e). See State v. Bilke, 162 Ariz. 51, 52–53, 781 P.2d 28,
29–30 (1989) (providing the requirements to obtain post-conviction relief
based on newly discovered evidence).
¶5 Bartels also argues the recent United States Supreme Court
decision in Martinez v. Ryan, -- U.S. --, 132 S. Ct. 1309 (2012), constitutes a
significant change in the law that allows him to raise the claims of
ineffective assistance of counsel in a successive petition for post-conviction
relief. Martinez held that “[w]here, under state law, claims of ineffective
assistance of trial counsel must be raised in an initial-review collateral
proceeding, a procedural default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial if, in the initial-
review collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.” 132 S. Ct. at 1320. This simply means Bartels
can seek habeas corpus relief in federal court based on ineffective assistance
of trial counsel if he can first show either he had no counsel in his first post-
conviction relief proceeding or counsel in his first post-conviction relief
proceeding was ineffective. Martinez does not require a state court to
consider all untimely claims of ineffective assistance of counsel raised in
post-conviction proceedings.
¶6 While Bartels’ petition for review references other issues he
presented to the trial court, he provides no supporting argument for those
issues. “Merely mentioning an argument is not enough[.]” State v. Moody,
208 Ariz. 424, 452 ¶ 101 n.9, 94 P.3d 1119, 1147 n.9 (2004). Further, if Bartels
meant to incorporate by reference the issues and arguments he presented
in the petition he filed in the trial court, he may not do so. A petition for
review may not incorporate by reference any issue or argument. The
petition must set forth specific claims, present sufficient argument
supported by legal authority, and include citation to the record. Ariz. R.
Crim. P. 32.5, 32.9(c); State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238
(App. 1991). “[C]ompliance with Rule 32 is not a mere formality.” Canion v.
Cole, 210 Ariz. 598, 600 ¶ 11, 115 P.3d 1261, 1263 (2005). A petitioner must
“strictly comply” with Rule 32 in order to be entitled to relief. Id.¶7 Finally, while the petition for review arguably presents
additional issues, Bartels did not raise those issues in the petition for post-
conviction relief he filed in the trial court. A petition for review may not
present issues not first presented to the trial court. Ariz. R. Crim. P.
32.9(c)(1)(ii); State v. Ramirez, 126 Ariz. 464, 466, 616 P.2d 924, 926 (App.
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STATE v. BARTELS
Decision of the Court
1980); State v. Wagstaff, 161 Ariz. 66, 71, 775 P.2d 1130, 1135 (App. 1988);
State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991).
¶8 We grant review and deny relief.
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