State v. Roper

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MICHAEL COLE ROPER, Petitioner.
No. 1 CA-CR 16-0476 PRPC
FILED 9-12-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2009-006254-003
The Honorable Bradley H. Astrowsky, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Michael Cole Roper, Tucson
Petitioner
STATE v. ROPER
Decision of the Court
MEMORANDUM DECISION
Judge James P. Beene delivered the decision of the Court, in which Chief
Judge Samuel A. Thumma and Judge Lawrence F. Winthrop joined.
B E E N E, Judge:
¶1 Petitioner Michael Cole Roper (“Roper”) petitions this court
for review from the dismissal of his petition for post-conviction relief, filed
pursuant to Arizona Rule of Criminal Procedure (“Rule”) 32. We have
considered the petition for review and, for the reasons stated, grant review
but deny relief.
¶2 In 2009, Roper pled guilty to one count of kidnapping. The
superior court sentenced him to a term of 22 years’ imprisonment. Roper
subsequently filed four notices of post-conviction relief. In Roper’s fourth
petition for post-conviction relief, he claimed ineffective assistance of post-
conviction relief counsel, but failed to state any specific facts or citations to
the record to support his claim. The superior court summarily dismissed
his petition as untimely and successive. The court then dismissed his
motion for reconsideration. This petition for review followed.
¶3 On review, Roper reiterates his claim of ineffective assistance
of post-conviction relief counsel but expands it to include ineffective
assistance of plea counsel at “critical stage[s]” and during the “entire trial
process.” We do not consider claims not first addressed to the superior
court and therefore decline to review these new claims. Ariz. R. Crim. P.
32.9(c)(1)(ii); see State v. Wagstaff, 161 Ariz. 66, 71 (App. 1988), approved as
modified, 164 Ariz. 485 (1990) (declining to consider ineffective assistance of
counsel claim where petitioner failed to specify how superior court erred,
denying the superior court “an opportunity to review meritorious issues”);
State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (declining to hear issues not
first decided by the superior court).
¶4 Additionally, Roper’s petition is deficient as it does not state
any facts or cite to the record to support his claims. See Ariz. R. Crim. P.
32.9(c)(1)(iii). Other than the name of his claimed post-conviction relief
counsel, Roper states no other facts in either his notice or petition for post-
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STATE v. ROPER
Decision of the Court
conviction relief to permit a meaningful review. 1 To state a colorable claim
of ineffective assistance of counsel, a defendant must show both that
counsel’s performance fell below reasonable standards and that the
deficient performance prejudiced the defendant. State v. Bennett, 213 Ariz.
562, 567, ¶ 21 (2006); Strickland v. Washington, 466 U.S. 668, 688 (1984). Here,
Roper does not state sufficient facts to show either.
¶5 As the superior court noted, Roper raised the same issue of
ineffective assistance of counsel in a previous notice of post-conviction
relief that was dismissed and for which he did not seek review. Therefore,
in this instance, he is precluded from relief as this issue was “adjudicated .
. . in [a] previous collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(2). As the
superior court also noted, even assuming he had not raised this issue
before, his notice for post-conviction relief would still be untimely. See Ariz.
R. Crim. P. 32.2(b); see also State v. Lopez, 234 Ariz. 513, 515, ¶8 (App. 2014)
(finding an untimely notice of post-conviction relief can be time barred
regardless of the constitutional magnitude of the claim).
¶6 We therefore grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
1 The superior court noted it could not find anywhere in the record the
appearance of the named post-conviction relief counsel. Likewise, we find
no record of such an appearance. Roper was granted relief on his second
pro se notice of post-conviction relief (raising the same claim as in his first)
when the superior court corrected its sentencing minute entry to reflect
concurrent sentences.
3