State v. Rodriguez ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
VINCENT E. RODRIGUEZ, Petitioner.
No. 1 CA-CR 13-0031 PRPC
FILED 4-17-2014
Petition for Review from the Superior Court in Maricopa County
No. CR2003-013217-001
The Honorable Edward Bassett, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Vincent E. Rodriguez, San Luis
Petitioner Pro Se
STATE v. RODRIGUEZ
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.
O R O Z C O, Judge:
¶1 Petitioner Vincent Edward Rodriguez (Rodriguez) petitions
this court for review from the dismissal of his petition for post-conviction
relief. For the reasons stated below, we grant review but deny relief.
¶2 Rodriguez pled guilty to possession or use of dangerous
drugs and the trial court placed him on three years' probation. The court
later revoked Rodriguez's probation based on his guilt in another matter
and sentenced him to two and one half years' imprisonment. Rodriguez
now seeks review of the summary dismissal of his petition for post-
conviction relief filed on December 19, 2011, one of two pending petitions
for post-conviction relief the trial court considered in a consolidated
proceeding. We have jurisdiction pursuant to Arizona Rule of Criminal
Procedure 32.9(c).
¶3 In his petition for review, Rodriguez argues the trial court
erred when it dismissed his petition for post-conviction relief as untimely
and when it failed to strike the State's response to the petition as untimely.
Rodriguez further argues the trial court erred when it noted in a minute
entry that it dismissed the petition for post-conviction relief on May 30,
2012 in open court and in Rodriguez's presence. Rodriguez argues he was
not present for any proceedings on May 30.
¶4 We deny relief. First, Rodriguez did not raise any of these
issues in the petition for post-conviction relief at issue. A petition for
review may not present issues not first presented to the trial court. State v.
Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991); Ariz. R. Crim. P.
32.9(c)(1)(ii). Second, the trial court did not dismiss Rodriguez's petition
for review as untimely, but expressly held the petition he filed on
2
STATE v. RODRIGUEZ
Decision of the Court
December 19, 2011 was timely. Third, the failure to strike the State's
response is not a cognizable claim under Rule 32.1.1
¶5 Regarding the trial court's reference to dismissing the matter
in Rodriguez's presence on May 30, 2012, the court later corrected itself
and noted the hearing was held on May 24, 2012, not May 30, 2012 but the
minute entry from the May 24, 2012 hearing was actually signed on May
30, 2012, and the record indicates Rodriguez was present at the hearing
held on May 24, 2012.
¶6 It is only in his reply that Rodriguez actually identifies and
addresses the issues he raised below. This court will not consider
arguments or issues first raised in a reply. See State v. Watson, 198 Ariz. 48,
51, ¶ 4, 6 P.3d 752, 755 (App. 2000). We also note that none of the claims
Rodriguez presented in the petition for post-conviction relief at issue are
cognizable under Rule 32.1.
¶7 For the above reasons, we grant review and deny relief.
:MJT
1 We decline to consider the State's response. The "response" simply
asks us to consider the response the State filed below, attaches a copy of
that response to the request and incorporates it by reference. Much of that
attached response addresses another matter not before us. Further, the
response does not address the petition for post-conviction relief at issue in
any meaningful way and does not address Rodriguez's petition for review
at all.
3