State v. Duran ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JESUS JACOBO DURAN, Petitioner.
No. 1 CA-CR 14-0471 PRPC
FILED 9-22-2016
Petition for Review from the Superior Court in Maricopa County
Nos. CR2004-131292-001
CR2006-171085-001
CR2008-104747-006
The Honorable Janet E. Barton, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Jesus Jacobo Duran, Buckeye
Petitioner Pro Se
STATE v. DURAN
Decision of the Court
MEMORANDUM DECISION
Chief Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Kenton D. Jones joined.
B R O W N, Chief Judge:
¶1 Jesus Jacobo Duran petitions for review of the superior court's
summary dismissal of his untimely notice of post-conviction relief, filed
pursuant to Arizona Rule of Criminal Procedure 32.1. We will not disturb
a court’s order denying relief under Rule 32 unless the court clearly abused
its discretion. State v. Lopez, 223 Ariz. 238, 239, ¶ 5 (App. 2009). Duran has
not met his burden of showing such abuse here; therefore, we grant review
but deny relief.
¶2 In 2006, Duran pled guilty to possession of dangerous drugs
for sale in Maricopa County Superior Court cause number CR2004-131292,
and to possession of drug paraphernalia in Maricopa County Superior
Court cause number CR2006-171085. The court suspended sentencing and
placed Duran on concurrent probation terms of four years on the conviction
for possession of dangerous drugs for sale and three years on the conviction
for possession of drug paraphernalia.
¶3 In 2008, a grand jury indicted Duran on three counts of
kidnapping, and one count each of burglary in the first degree, aggravated
assault, theft by extortion, and theft of means of transportation in Maricopa
County Superior Court cause number CR2008-104747. The State thereafter
filed petitions to revoke Duran’s probation in cause numbers CR2004-
131292-001 and CR2006-171085. Duran pled guilty to one count of
kidnapping in cause number CR2008-104747 in exchange for dismissal of
the other six counts, the allegations of dangerous, his prior felony
convictions, and that he was on probation at the time of the offense. Based
on the guilty plea to the kidnapping charge, the court found Duran in
automatic violation of his probation in cause numbers CR2004-131292 and
CR2006-171085.
¶4 The superior court sentenced Duran in the three cases to
consecutive terms of ten years on the conviction for kidnapping, five years
on the conviction for possession of dangerous drugs for sale, and one year
on the conviction for possession of drug paraphernalia. At sentencing,
2
STATE v. DURAN
Decision of the Court
Duran was advised of his rights of review, including the requirement that
in order to exercise his post-conviction rights he must file a notice of post-
conviction relief within 90 days of entry of judgment and sentencing. See
Ariz. R. Crim. P. 32.4(a).
¶5 Duran filed a “delayed,” pro se notice of post-conviction relief
under all three cause numbers in June 2013, nearly five years after he had
been sentenced. In this notice, he stated he was raising a claim of ineffective
assistance of counsel and also indicated his untimely filing was through no
fault of his own based on Rule 32.1(f). In summarily dismissing the notice
of post-conviction relief, the superior court rejected Duran’s claim that his
untimely filing was without fault on his part, noting Duran had been
advised of the time period in which to initiate a post-conviction proceeding,
and further finding Duran had “failed to provide sufficient factual or legal
basis to substantiate” the claim. See Ariz. R. Crim. P. 32.2(b) (stating “notice
of post-conviction relief must set forth the substance of the specific
exception [to preclusion] and the reasons for not raising the claim in . . . a
timely manner”). The court also dismissed the claim of ineffective
assistance of counsel Duran raised pursuant to Rule 32.1(a), noting he was
precluded from raising such a claim in an untimely petition. See Ariz. R.
Crim. P. 32.2(b), 32.4(a).
¶6 On review, Duran contends the superior court erred by
dismissing his Rule 32 notice as untimely. Under Rule 32.4(a), only claims
pursuant to Rule 32.1(d), (e), (f), (g) or (h) may be raised in an untimely
post-conviction proceeding. When raising a claim barred by Rule 32.4(a), a
defendant who files an untimely notice of post-conviction relief “has no
remedy unless that defendant can demonstrate, pursuant to Rule 32.1(f),
that the ‘failure to file a notice of post-conviction relief of-right . . . within
the prescribed time was without fault on the defendant’s part.’” State v.
Lopez, 234 Ariz. 513, 515, ¶ 9 (App. 2014) (quoting Ariz. R. Crim. P. 32.1(f)).
¶7 In his petition for review, Duran asserts that he was ignorant
of his rights due to a limited understanding of the English language. We
note, however, that at sentencing Duran signed the “Notice of Rights of
Review after Conviction and Procedure” in all three cases, evidencing that
he received the notice explaining his rights to obtain post-conviction relief.
Under these circumstances, merely referencing a limited understanding of
English, without more, when Duran participated in all three cases without
the need of an interpreter is not sufficient to demonstrate that the failure to
file a timely notice was without fault on his part.
3
STATE v. DURAN
Decision of the Court
¶8 Duran has failed to set forth reasons substantiating his claim
based on Rule 32.1(f). Also, Duran has not asserted that the superior court
failed to advise him of the time period in which he must exercise his right
to seek post-conviction relief, or that he mistakenly had believed his counsel
had filed a timely notice. Nor has Duran explained why his claims are not
subject to preclusion. Therefore, because Duran did not demonstrate to the
superior court that his claims were excepted from preclusion, the court did
not abuse its discretion in dismissing his untimely post-conviction
proceeding.
¶9 Accordingly, we grant the petition for review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
4