State v. Van Keuren

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ROBERT VAN KEUREN, Petitioner.
No. 1 CA-CR 13-0684 PRPC
FILED 3-3-2015
Appeal from the Superior Court in Yavapai County
No. P1300CR 930461
The Honorable Cele Hancock, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Yavapai County Attorney’s Office, Prescott
By Steven A. Young
Counsel for Respondent
Robert Van Keuren, Florence
Petitioner
STATE v. VAN KEUREN
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Maurice Portley and Judge Jon W. Thompson joined.
G O U L D, Judge:
¶1 Petitioner Robert Roy Van Keuren petitions this court for
review from the dismissal of his petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
and deny relief.
¶2 A jury convicted Van Keuren of kidnapping and two counts
each of sexual assault and aggravated assault. The trial court sentenced
him to an aggregate term of forty-eight years' imprisonment and we
affirmed his convictions on direct appeal. State v. Van Keuren, 1 CA-CR 94-
0869 (Ariz. App. Feb. 6, 1996) (mem. decision). Van Keuren now seeks
review of the summary dismissal of his third petition for post-conviction
relief. We have jurisdiction pursuant to Arizona Rule of Criminal
Procedure 32.9(c).
¶3 Van Keuren argues his trial counsel was ineffective during the
plea negotiation process and that his first post-conviction relief counsel was
ineffective when he failed to raise this issue in Van Keuren's first post-
conviction relief proceeding. Van Keuren contends the Supreme Court
decisions of Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399 (2012), Lafler v.
Cooper, ___ U.S. ___, 132 S. Ct. 1376 (2012), and Martinez v. Ryan, __ U.S. __,
132 S. Ct. 1309 (2012), constitute significant changes in the law that allow
him to raise these claims even though they are untimely.
¶4 We deny relief. In Frye and Lafler, the Supreme Court held a
defendant has a right to effective assistance of counsel during the plea
bargain process. Frye, ___ U.S. at ___, 132 S.Ct. at 1407-1408; Lafler, ___ U.S.
at ___, 132 S.Ct. at 1384. In Frye, the court further held the right to effective
assistance includes the right to have counsel communicate all formal,
favorable plea offers to the defendant. Frye, ___ U.S. at ___, 132 S.Ct. at
1408. Frye and Lafler are not significant changes in the law as applied in
Arizona, however. Arizona has long recognized that the right to effective
assistance of counsel extends to the plea bargain process, and that counsel
must adequately communicate all plea offers to the defendant. State v.
2
STATE v. VAN KEUREN
Decision of the Court
Donald, 198 Ariz. 406, 413, ¶¶ 14-17 (App. 2000). While we decided Donald
after Van Keuren pled guilty, Van Keuren could have raised these issues
pursuant to Donald years ago in a timely post-conviction relief proceeding.
Any claim a defendant could have raised in an earlier post-conviction relief
proceeding is precluded. Ariz. R. Crim. P. 32.2(a). None of the exceptions
under Rule 32.2(b) apply.
¶5 Regarding Martinez v. Ryan, Martinez held, "Where, under
state law, claims of ineffective assistance of trial counsel must be raised in
an initial-review collateral proceeding, a procedural default will not bar a
federal habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective." Martinez, __ U.S. at
__, 132 S.Ct. at 1320. This simply means Van Keuren can seek habeas corpus
relief in federal court based on ineffective assistance of trial counsel if he
can first show either he had no counsel in his first post-conviction relief
proceeding or counsel in his first post-conviction relief proceeding was
ineffective. Martinez does not require a state court to consider all untimely
claims of ineffective assistance of counsel raised in post-conviction
proceedings.
¶6 We grant review and deny relief.
:ama
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