State v. Kirtley

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
RICHARD JAMES KIRTLEY, Petitioner.
No. 1 CA-CR 15-0144 PRPC
FILED 3-14-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2008-180683-001
The Honorable Cari A. Harrison, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Richard James Kirtley, San Luis
Petitioner
MEMORANDUM DECISION
Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Margaret H. Downie joined.
STATE v. KIRTLEY
Decision of the Court
B E E N E, Judge:
¶1 Petitioner Richard James Kirtley petitions this Court for
review from the summary dismissal of his second petition for post-
conviction relief. A jury found Kirtley guilty of four drug offenses and the
trial court sentenced him to an aggregate term of twelve years’
imprisonment. This Court affirmed Kirtley’s convictions and sentences on
direct appeal. Kirtley argues his trial counsel and his first post-conviction
relief counsel were ineffective.
¶2 We deny relief. Kirtley could have raised the claims of
ineffective assistance of trial counsel in his first post-conviction relief
proceeding in 2013. 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. Regarding ineffective
assistance of post-conviction relief counsel, a defendant is not entitled to
effective assistance of counsel in a post-conviction relief proceeding unless
the proceeding was an “of-right” proceeding. State v. Pruett, 185 Ariz. 128,
131 (App. 1995). Kirtley’s first proceeding was not an “of-right”
proceeding. Finally, the trial court dismissed Kirtley’s first post-conviction
proceeding in April 2014 and Kirtley did not file his second notice of post-
conviction relief until January 2015. Therefore, his claims are also untimely.
Ariz. R. Crim. P. 32.4(a).
¶3 We grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
2