State v. Bellino

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JOHN VINCENT BELLINO, Petitioner.
No. 1 CA-CR 20-0457 PRPC
FILED 4-8-2021
Appeal from the Superior Court in Maricopa County
No. CR 2018-118327-001
No. CR 2018-001542-001
The Honorable Dewain D. Fox, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Respondent
John Vincent Bellino, Florence
Petitioner
STATE v. BELLINO
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Cynthia J. Bailey and Judge Lawrence F. Winthrop joined.
M c M U R D I E, Judge:
¶1 John Vincent Bellino petitions this court to review the
summary dismissal of his two notices of post-conviction relief (the “PCR
Notices”) filed under Arizona Rule of Criminal Procedure 33.1 We have
considered his petition and, for the reasons stated below, grant review but
deny relief.
¶2 Bellino pled guilty to the possession or use of dangerous
drugs and misconduct involving weapons in two separate cases. On
August 26, 2019, the superior court sentenced Bellino to concurrent terms
of 4.5 years’ imprisonment per the plea agreements. On July 28, 2020,
Bellino filed the PCR Notices. Bellino checked boxes on each notice
indicating that he intended to raise claims of newly discovered evidence
and excusable failure to timely file a notice of post-conviction relief. See
Ariz. R. Crim. P. 33.1(e), (f). Bellino recognized that he failed to timely file
the notices. The PCR Notices contained no information related to either
claim, and the only explanation Bellino offered for their untimeliness was
that “[n]ewly [d]iscovered material facts came to view after sentencing.”
¶3 The superior court summarily dismissed the PCR Notices,
finding, inter alia, that Bellino had failed to explain adequately why they
were more than eight months late. Ariz. R. Crim. P. 33.2(b)(1).
¶4 We review the superior court’s dismissal order for an abuse
of discretion, Ariz. R. Crim. P. 33.2(b)(1), 33.4(b)(3)(D), which is Bellino’s
burden to establish. See State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011).
1 Bellino asserts the superior court improperly converted his Rule 32
claims into Rule 33 claims. Because Bellino pled guilty to the criminal
offenses related to the notices of post-conviction relief, the court properly
characterized the notices as made under Rule 33. Ariz. R. Crim. P. 33.1 (“A
defendant may file a notice requesting post-conviction relief under this rule
if the defendant pled guilty . . . to a criminal offense[.]”).
2
STATE v. BELLINO
Decision of the Court
An abuse of discretion is “an exercise of discretion [that] is manifestly
unreasonable, exercised on untenable grounds or for untenable reasons.”
State v. Woody, 173 Ariz. 561, 563 (App. 1992) (quoting Williams v. Williams,
166 Ariz. 260, 265 (App. 1990)).
¶5 A pleading defendant must file a notice within 90 days after
the sentence’s oral pronouncement to pursue post-conviction relief. Ariz. R.
Crim. P. 33.1, 33.4(b)(3)(A). The court may summarily dismiss a notice as
untimely if it is not filed within 90 days, State v. Rosario, 195 Ariz. 264, 266,
¶ 7 (App. 1999), unless the defendant “adequately explains why the failure
to timely file a notice was not the defendant’s fault.” Ariz. R. Crim. P.
33.4(b)(3)(D); see also Ariz. R. Crim. P. 33.2(b)(1). When making specified
claims under the Rules—including claims of newly discovered evidence
and a failure to timely file a notice of post-conviction relief—a pleading
defendant must file a notice “within a reasonable time after discovering the
basis for the claim” and “explain the reasons for not raising the claim . . . in
a timely manner.” Ariz. R. Crim. P. 33.4(b)(3)(B); Ariz. R. Crim. P. 33.2(b)(1).
When a defendant fails to explain an untimely notice adequately, the
superior court may summarily dismiss it. Ariz. R. Crim. P. 33.2(b)(1).
¶6 The superior court did not abuse its discretion by summarily
dismissing the PCR Notices. By checking the box indicating the PCR
Notices were untimely, Bellino clearly understood they were late but
offered only that “[n]ewly [d]iscovered material facts came to view after
sentencing” as an explanation for the untimeliness. Bellino provided no
details about when these “material facts came to view” or any other
information relevant to his claims’ timeliness. Thus, Bellino failed to explain
why he filed the PCR Notices over eight months after they were due.
¶7 For the first time in his petition for review, Bellino asserts that
“newly discovered material [came] to light” once he was given “[f]ull access
to [his] case file.” But Bellino again offers no details concerning when he
received the case file and did not bring this information to the superior
court’s attention in the PCR Notices. Ariz. R. Crim. P. 33.16(c)(2)(B)
(limiting petition for review to “issues the trial court decided”).
Accordingly, we conclude the court correctly dismissed the PCR Notices
under Rule 33.2(b)(1).2
2 Because we conclude the superior court did not abuse its discretion
by summarily dismissing the PCR Notices, we need not address Bellino’s
claims concerning Rule 33.1(e) and (f) in his petition for review.
3
STATE v. BELLINO
Decision of the Court
¶8 We grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
4