State v. Biscoe

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
KASEY BISCOE, Petitioner.
No. 1 CA-CR 13-0575 PRPC
FILED 3-3-2015
Petition for Review from the Superior Court in Maricopa County
No. CR2010-005987-001
The Honorable Cynthia Bailey, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Kasey Biscoe, Buckeye
Petitioner Pro Se
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Maurice Portley and Judge Jon W. Thompson joined.
STATE v. BISCOE
Decision of the Court
G O U L D, Judge:
¶1 Kasey Biscoe petitions for review of the trial court's summary
dismissal of his notice of post-conviction relief filed pursuant to Rule 32,
Ariz. R. Crim. P. We have considered his petition and, for the reasons
stated, grant review but deny relief.
¶2 Biscoe pled guilty to manslaughter, a class two felony and
dangerous offense. On September 28, 2012, the trial court sentenced Biscoe
to an aggravated sixteen-year prison term.
¶3 On July 15, 2013, Biscoe filed an untimely notice of post-
conviction relief in which he indicated that he intended to raise a claim of
ineffective assistance of counsel. He further stated in the notice that the
notice was being filed under and pursuant to Rule 32.1(f) in that the failure
to file a timely notice was without fault on his part. After reviewing the
notice, the trial court summarily dismissed the proceedings on the grounds
that Biscoe failed to set forth a valid factual or legal basis to support his
assertion that the untimely filing of the notice of post-conviction relief was
through no fault of his own and further failed to state a claim that can be
raised in an untimely post-conviction proceeding.
¶4 On review, Biscoe argues the trial court erred in summarily
dismissing the notice because the dismissal is not supported by the Rules
of Criminal Procedure. We disagree.
¶5 A defendant who pleads guilty waives his right to a direct
appeal. Arizona Revised Statute section 13-4033(B) (West 2015). Thus, a
pleading defendant’s only means of obtaining review of his conviction and
sentence is pursuant to Rule 32, in a proceeding “known as a Rule 32 of-
right proceeding.” Ariz. R. Crim. P. 32.1. To commence a timely Rule 32
“of-right” proceeding, a defendant must file a notice of post-conviction
relief within ninety days after the entry of judgment or sentence. Ariz. R.
Crim. P. 32.4(a). Biscoe filed his notice of post-conviction relief more than
five months after he was sentenced.
¶6 A notice of post-conviction relief not timely filed is limited to
raising claims pursuant to Rule 32.1(d), (e), (f), (g), or (h). Ariz. R. Crim. P.
32.4(a). The failure to file a notice of post-conviction relief of-right within
the prescribed time is a claim that may be raised in an untimely notice of
post-conviction relief. Ariz. R. Crim. P 32.1(f). However, when an excepted
claim is raised in an untimely notice of post-conviction relief, the notice
“must set forth the substance of the specific exception and the reasons for
2
STATE v. BISCOE
Decision of the Court
not raising the claim . . . in a timely manner.” Ariz. R. Crim. P. 32.2(b). “If
the specific exception and meritorious reasons do not appear substantiating
the claim and indicating why the claim was not stated . . . in a timely
manner, the notice shall be summarily dismissed.” Id. As the trial court
noted in dismissing the notice, Biscoe set forth no valid factual or legal basis
to support his assertion that the untimely filing of the notice of post-
conviction relief was through no fault of his own.
¶7 The other claim listed by Biscoe in his notice -- ineffective
assistance of counsel -- does not fall within any of the categories of claims
that may be raised in an untimely notice of post-conviction relief. Thus, the
trial court did not err in finding that Biscoe failed to state a claim for which
relief can be granted in an untimely post-conviction proceeding. See State
v. Manning, 143 Ariz. 139, 141 (1984) (“A petitioner must comply strictly
with Rule 32 by asserting substantive grounds which bring him within the
provisions of the rule in order to be entitled to any relief.”). Accordingly,
the trial court acted in full compliance with the Arizona Rules of Criminal
Procedure in summarily dismissing the untimely notice.
¶8 For the reasons stated, we grant review, but deny relief.
:ama
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