State v. Manganiello

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
LOUIS JAMES MANGANIELLO, JR., Petitioner.
No. 1 CA-CR 19-0020 PRPC
FILED 9-10-2019
Petition for Review from the Superior Court in Maricopa County
No. CR2008-131377-002
The Honorable Pamela D. Svoboda, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Andrea L Kever
Counsel for Respondent
Louis James Manganiello, Jr., Eloy
Petitioner
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Samuel A. Thumma and Chief Judge Peter B. Swann joined.
STATE v. MANGANIELLO
Decision of the Court
M c M U R D I E, Judge:
¶1 Louis James Manganiello, Jr., petitions this court to review the
dismissal of his petition for post-conviction relief, filed according to
Arizona Rule of Criminal Procedure (“Rule”) 32. We have considered the
request for review and, for the reasons stated, grant review but deny relief.
¶2 Manganiello pled guilty in February 2009 to aggravated
taking the identity of another, a class 3 felony. The superior court
suspended imposition of the sentence and placed Manganiello on four
years of supervised probation to commence upon his discharge from prison
in another matter.
¶3 Manganiello was released, and halfway through his
probation term, the State petitioned the court to revoke his probation. The
State alleged Manganiello violated his probation conditions by continuing
to engage in criminal conduct. The court found the allegation proven but
reinstated Manganiello to a four-year probation term.
¶4 Approximately four months later, the State alleged
Manganiello committed additional criminal offenses and again petitioned
to revoke his probation. Before the superior court conducted the revocation
proceeding, Manganiello filed a petition for post-conviction relief claiming
he was incompetent to plead guilty in 2009 and he lacked the requisite mens
rea to commit aggravated taking the identity of another. Manganiello also
raised an ineffective assistance of counsel claim arguing plea counsel
allegedly misstated circumstances surrounding the plea. The court revoked
Manganiello’s probation and imposed a 3.5-year prison term, and
summarily dismissed Manganiello’s Rule 32 petition. This petition for
review followed.
¶5 “We will not disturb a trial court’s ruling on a petition for
post-conviction relief absent a clear abuse of discretion.” State v. Swoopes,
216 Ariz. 390, 393, ¶ 4 (App. 2007). The petitioner bears the burden of
establishing an abuse of discretion. State v. Poblete, 227 Ariz. 537, 538, ¶ 1
(App. 2011).
¶6 The superior court correctly dismissed the Rule 32
proceeding. A notice of post-conviction relief may be summarily dismissed
as untimely if it is not filed within 90 days of the entry of judgment, State v.
Rosario, 195 Ariz. 264, 266, ¶ 7 (App. 1999), and Manganiello’s challenge to
his guilty plea was untimely by almost eight years. None of Manganiello’s
claims fall under Rule 32.1(d), (e), (f), (g) or (h) and therefore, Rule 32’s time
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STATE v. MANGANIELLO
Decision of the Court
requirement applies. Ariz. R. Crim. P. 32.4(a). Even if his claims could be
construed as encompassing an exception to the time bar, Manganiello failed
to support his claim. See Ariz. R. Crim. P. 32.5(d) (“The defendant must
attach to the petition any affidavits, records, or other evidence currently
available to the defendant supporting the petition’s allegations.”). Instead,
without further explanation, Manganiello stated he failed to commence
timely the Rule 32 proceeding due to “excusable neglect.” Excusable neglect
does not obviate the jurisdiction bar. See A.R.S. § 13-4234(G) (“The time
limits [in Rule 32] are jurisdictional, and an untimely filed notice or petition
shall be dismissed with prejudice.”).
¶7 We grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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