State v. Roque ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
FRANK SILVA ROQUE, Petitioner.
No. 1 CA-CR 13-0705 PRPC
FILED 3-3-2015
Appeal from the Superior Court in Maricopa County
No. CR2001-095385
The Honorable Mark F. Aceto, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Frank Silva Roque, Buckeye
Petitioner
STATE v. ROQUE
Decision of the Court
MEMORANDUM DECISION
Acting Presiding Judge Lawrence F. Winthrop delivered the decision of the
Court, in which Judge Peter B. Swann and Chief Judge Diane M. Johnsen
joined.
W I N T H R O P, Acting Presiding Judge:
¶1 Petitioner Frank Silva Roque (“Roque”) petitions this court
for review from the dismissal of his notice of post-conviction relief. We
have considered the petition for review and, for the reasons stated, grant
review, but deny relief.
¶2 A jury convicted Roque of first degree murder, attempted first
degree murder, endangerment, and three counts of drive by shooting. The
trial court sentenced Roque to death for first degree murder and an
aggregate term of twenty-four years’ imprisonment for the remaining
counts. The Arizona Supreme Court reduced Roque’s death sentence to
natural life but otherwise affirmed his convictions and sentences on direct
appeal. State v. Roque, 213 Ariz. 193, 231, ¶ 171, 141 P.3d 368, 406 (2006).
Roque now seeks review of the summary dismissal of his successive notice
of post-conviction relief. We have jurisdiction pursuant to Arizona Rule of
Criminal Procedure (“Rule”) 32.9(c).
¶3 Roque argues the trial court erred when it admitted hearsay
statements of his wife at trial. We deny relief. Our supreme court
addressed this issue on direct appeal and did so in the context of Crawford
v. Washington, 541 U.S. 36 (2004), the case Roque relies upon. Roque, 213
Ariz. at 213-14, ¶¶ 69-70, 141 P.3d at 388-89. Any claim a defendant raised
or could have raised on direct appeal is precluded. Ariz. R. Crim. P. 32.2(a).
None of the exceptions under Rule 32.2(b) apply. While Roque argues the
supreme court erred in its analysis, review by this court of a decision of the
supreme court is not a cognizable claim under Rule 32.1. Further, “we are
bound by decisions of the Arizona Supreme Court and have no authority
to overrule, modify, or disregard them. . . . Whether prior decisions of the
Arizona Supreme Court are to be disaffirmed is a question for that court.”
Myers v. Reeb, 190 Ariz. 341, 342, 947 P.2d 915, 916 (App. 1997) (quoting City
of Phoenix v. Leroy’s Liquors, Inc., 177 Ariz. 375, 378, 868 P.2d 958, 961 (App.
1993)).
2
STATE v. ROQUE
Decision of the Court
¶4 While the petition for review presents additional issues,
Roque did not raise those issues in the notice of post-conviction relief he
filed below. A petition for review may not present issues not first presented
to the trial court. State v. Ramirez, 126 Ariz. 464, 467, 616 P.2d 924, 927 (App.
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); Ariz. R. Crim.
P. 32.9(c)(1)(ii).
¶5 Accordingly, we grant review, but deny relief.
:ama
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