Filed: Dec. 19, 2014
Latest Update: Dec. 19, 2014
Summary: NOT FOR PUBLICATION THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24. MEMORANDUM DECISION ECKERSTROM, Chief Judge. 1 Robert Brown seeks review of the trial court's order denying his "Supplement Brief to Petition of Review," which the court treated as a successive petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruli
Summary: NOT FOR PUBLICATION THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24. MEMORANDUM DECISION ECKERSTROM, Chief Judge. 1 Robert Brown seeks review of the trial court's order denying his "Supplement Brief to Petition of Review," which the court treated as a successive petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that rulin..
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NOT FOR PUBLICATION
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
MEMORANDUM DECISION
ECKERSTROM, Chief Judge.
¶1 Robert Brown seeks review of the trial court's order denying his "Supplement Brief to Petition of Review," which the court treated as a successive petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Brown has not met his burden of demonstrating such abuse here.
¶2 Brown pled guilty to armed robbery and robbery and was sentenced to consecutive prison terms totaling 13.75 years. He sought post-conviction relief, and appointed counsel filed a notice stating she had reviewed the record but found no claims to raise in post-conviction proceedings. Counsel then filed a "supplemental brief" on Brown's behalf, claiming that his plea was not knowing, intelligent, and voluntary because he was not competent to plead guilty, and that his trial counsel was ineffective for failing to seek an independent evaluation of his competence after the trial court refused his request for an evaluation pursuant to Rule 11, Ariz. R. Crim. P.1 The trial court summarily denied relief.
¶3 Brown then sought, and received, numerous extensions of time in which to file a petition for review pursuant to Rule 32.9(c). He ultimately filed in the trial court a document he titled "Supplement Brief to Petition of Review," in which he again claimed he was not competent to plead guilty, the court "lacked the jurisdiction to allow an incompetent defendant to sign a plea," and his plea agreement was therefore "void." He also repeated his claim of ineffective assistance of counsel. The trial court, treating Brown's "Petition of Review" as a petition for post-conviction relief, summarily dismissed it, finding his claims precluded.2
¶4 On review, Brown argues his claims are not precluded because they involve a right of sufficient constitutional magnitude to require personal waiver, citing Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (2002). Brown is correct that, pursuant to Stewart, certain claims may be raised in a successive post-conviction proceeding without being subject to preclusion on waiver grounds pursuant to Rule 32.2(a)(3). See Stewart, 202 Ariz. 446, ¶ 12, 46 P.3d at 1071. But Stewart has no application here. Brown's claims are not precluded on waiver grounds pursuant to Rule 32.2(a)(3), they are precluded pursuant to Rule 32.2(a)(2) because they were finally adjudicated in his first post-conviction proceeding.
¶5 Although we grant review, we deny relief.
