State v. Rivera-Longoria

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MARTIN RIVERA-LONGORIA, Petitioner.
No. 1 CA-CR 16-0864 PRPC
FILED 9-14-2017
Petition for Review from the Superior Court in Coconino County
No. S0300CR201200059
The Honorable Dan R. Slayton, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Coconino County Attorney’s Office, Flagstaff
By William P. Ring
Counsel for Respondent
Martin Rivera-Longoria, Florence
Petitioner
STATE v. RIVERA-LONGORIA
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Jon W. Thompson joined.
M c M U R D I E, Judge:
¶1 Petitioner Martin Rivera-Longoria petitions this court for
review from the summary dismissal of his first post-conviction relief
proceeding. We have considered the petition for review and, for the reasons
stated, grant review but deny relief.
¶2 A jury convicted Rivera-Longoria of six counts of child abuse,
all dangerous crimes against children. 1 The superior court sentenced
Rivera-Longoria to an aggregate term of 101 years’ imprisonment and we
affirmed his convictions and sentences on direct appeal. State v.
Rivera-Longoria, 1 CA-CR 12-0506, 2013 WL 5820509 (Ariz. App. Oct. 29,
2013) (mem. decision). Rivera-Longoria filed a timely notice of
post-conviction relief and the superior court appointed counsel to represent
him. After several extensions of time to file a petition and one change of
counsel, Rivera-Longoria’s appointed counsel eventually filed notice that
he could find no colorable claims for relief. The superior court granted
counsel’s motion to withdraw and ordered Rivera-Longoria to file a pro se
petition for post-conviction relief within 45 days. Rivera-Longoria never
filed a petition and the superior court dismissed the proceedings 11 months
after the deadline passed. Ten months after the court dismissed the
proceedings, Rivera-Longoria filed a motion for reconsideration. The
superior court denied the motion as untimely because Rivera-Longoria
failed to file the motion within 15 days after the court dismissed the
proceedings. See Ariz. R. Crim. P. 32.9(a).
¶3 In his petition for review, Rivera-Longoria argues his
post-conviction relief counsel was ineffective because counsel failed to file
1 Rivera-Longoria was originally indicted on one count of child abuse.
Rivera-Longoria v. Slayton, ex rel. County of Coconino, 228 Ariz. 156, 157 (2011).
After pre-trial litigation concluded, he was indicted on additional charges.
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STATE v. RIVERA-LONGORIA
Decision of the Court
a timely petition for post-conviction relief. He also argues the superior court
erred when it denied his motion for reconsideration.
¶4 We deny relief. First, ineffective assistance of post-conviction
relief counsel is not a valid claim under Rule 32 unless made against counsel
who provided representation in an “of-right” post-conviction relief
proceeding. State v. Pruett, 185 Ariz. 128, 131 (App. 1995). Because
Rivera-Longoria’s convictions and sentences resulted from a jury trial, this
post-conviction relief proceeding is not an “of-right” proceeding. See Ariz.
R. Crim. P. 32.1. Further, counsel did not “fail” to file a petition. Counsel
informed the court there were no colorable claims for relief and the court
allowed counsel to withdraw. It is also important to note that
Rivera-Longoria has never identified any issues counsel should have
raised. Finally, the superior court did not abuse its discretion when it
dismissed Rivera-Longoria’s motion for reconsideration after he filed it
nearly ten months late.
¶5 We grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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