State v. Preayer ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ROGER WAYNE PREAYER, Petitioner.
No. 1 CA-CR 16-0427 PRPC
FILED 8-17-2017
Petition for Review from the Superior Court in Maricopa County
No. CR 0000-161528
The Honorable Dean M. Fink, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Roger Wayne Preayer, Tucson
Petitioner
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Michael J. Brown joined.
STATE v. PREAYER
Decision of the Court
C A M P B E L L, Judge:
¶1 Petitioner Roger Wayne Preayer petitions this court for
review from the summary dismissal of his petition for post-conviction
relief. We have considered the petition for review and grant review, but
deny relief.
¶2 A jury convicted Preayer of fourteen counts of armed robbery.
The superior court then sentenced Preayer to a prison term of over 250
years. This court affirmed his convictions on appeal, but remanded for
resentencing. State v. Preayer, 1 CA-CR 88-010 (Ariz. App. April 18, 1989)
(mem. decision). The superior court re-sentenced Preayer, and this court
affirmed his resentence on appeal. State v. Preayer, 1 CA-CR 90-430 (Ariz.
App. April 25, 1991) (mem. decision).
¶3 Preayer subsequently filed multiple petitions for post-
conviction relief (“PCR”). In 2002, he filed an untimely successive PCR
claiming ineffective assistance of both his trial counsel and his initial PCR
counsel under State v. Donald, 198 Ariz. 406 (App. 2000). Preayer alleged his
trial counsel did not advise him of a plea offer, which he learned of upon a
review of the transcripts from his 1990 re-sentencing, and that his PCR
counsel was ineffective for not raising the issue in his first PCR. The
superior court summarily dismissed the petition and this court denied
review.
¶4 Preayer filed another untimely successive PCR, and raised the
same ineffective assistance of counsel claims regarding his trial counsel and
first PCR counsel. The superior court found that both claims were
precluded, as the superior court had previously addressed these claims in
2002. See Ariz. R. Crim. P. 32.2(a)(2). It further found his claims were
untimely. See Ariz. R. Crim. P. 32.4(a).
¶5 Preayer petitioned this court for review. In his petition,
Preayer argues that his right of review is of “sufficient constitutional
magnitude” and, because he did not waive his rights, his petition should
not have been precluded as untimely. He is wrong. See State v. Lopez, 234
Ariz. 513 (App. 2014) (a defendant’s untimely claim for post-conviction
relief is time-barred regardless of constitutional magnitude of underlying
claim). Additionally, in its thorough and well-reasoned decision, the
superior court clearly responded to his legal assertions and correctly denied
his most recent PCR. Under State v. Whipple, 177 Ariz. 272 (App. 1993), we
adopt the ruling of the superior court.
2
STATE v. PREAYER
Decision of the Court
¶6 Accordingly, we grant review, but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
3