State v. Vasquez ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
PETE RUBEN VASQUEZ, Petitioner.
No. 1 CA-CR 14-0483 PRPC
FILED 8-9-2016
Petition for Review from the Superior Court in Maricopa County
No. CR 1994-007713
The Honorable Christine E. Mulleneaux, judge pro tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Pete Ruben Vasquez, Florence
Petitioner Pro Se
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Peter B. Swann and Judge Jon W. Thompson joined.
STATE v. VASQUEZ
Decision of the Court
K E S S L E R, Judge:
¶1 Pete Ruben Vasquez aka Pete Ruben Huerta petitions this
Court for review of the summary dismissal of his petition for post-
conviction relief, filed pursuant to Arizona Rule of Criminal Procedure
(“Rule”) 32.1. We have considered the petition for review and, for the
reasons stated, grant review but deny relief.
¶2 In 1995, Vasquez pled guilty in Maricopa County Superior
Court cause number CR94-07713 to two counts of attempted sexual conduct
with a minor in the second degree. On August 21, 1995, the superior court
sentenced Vasquez in accordance with the plea agreement to a ten-year
term of imprisonment followed by a term of lifetime probation.
¶3 In May 2010, while Vasquez was on probation following his
release from prison, the State petitioned to revoke his probation. Vasquez
admitted to the violation, and on November 1, 2010, the superior court
revoked his probation and sentenced him to a ten-year term of
imprisonment.
¶4 Vasquez filed a timely notice of post-conviction relief of right
and the superior court appointed counsel to represent him. Appointed
counsel filed a notice of completion of post-conviction review, stating he
could find no claims for relief to raise on Vasquez’s behalf. The proceedings
were dismissed on November 3, 2011, after Vasquez was given the
opportunity to file a pro se petition and failed to do so.
¶5 On February 20, 2014, Vasquez filed a notice and petition for
post-conviction relief alleging claims of illegal sentence and ineffective
assistance of trial and appellate counsel. The superior court summarily
dismissed the proceedings, finding the notice and petition to be untimely
and successive and the claims to be precluded. This petition for review
followed.
¶6 On review, Vasquez contends the superior court erred in
denying relief on his claims of illegal sentence and ineffective assistance of
counsel. We review the summary dismissal of a post-conviction relief
proceeding for abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17
(2006).
¶7 Because Vasquez filed his second notice and petition for post-
conviction relief more than ninety days after the order of dismissal of his
post-conviction proceeding of right, the notice and petition were untimely.
See Ariz. R. Crim. P. 32.4(a). “Any notice not timely filed may only raise
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STATE v. VASQUEZ
Decision of the Court
claims pursuant to Rule 32.1(d), (e), (f), (g) or (h).” Id.; see also State v. Shrum,
220 Ariz. 115, 118, ¶ 13 (2009) (noting "few exceptions" to "general rule of
preclusion" for claims in untimely or successive petitions).
¶8 Claims of illegal sentence do not fall within Rule 32.1(d), (e),
(f), (g) or (h) because they are encompassed within Rule 32.1(c). State v.
Cazares, 205 Ariz. 425, 426, ¶ 4 (App. 2003). Similarly, claims of ineffective
assistance of counsel do not fall within Rule 32.1(d), (e), (f), (g) or (h)
because they are “cognizable under Rule 32.1(a).” State v. Petty, 225 Ariz.
369, 373, ¶ 11 (App. 2010); see also Ariz. R. Crim. P. 32.1(a) cmt. (noting
claims of ineffectiveness of counsel and violations of other constitutional
rights fall under this subsection). Thus, the superior court did not err in
ruling that Vasquez was precluded from raising the illegal sentence and
ineffective assistance of counsel claims in the untimely post-conviction
proceeding. Accordingly, there was no abuse of discretion by the superior
court in summarily dismissing the notice and petition.
¶9 For the foregoing reasons, we grant review but deny relief.
:AA
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