State v. Hoyos ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DANIEL HOYOS, Petitioner.
No. 1 CA-CR 13-0789 PRPC
FILED 5-28-2015
Petition for Review from the Superior Court in Maricopa County
No. CR 2011-108571-001
The Honorable Sherry K. Stephens, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Daniel Hoyos, Florence
Pro Se Petitioner
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Judge Michael J. Brown joined.
STATE v. HOYOS
Decision of the Court
G E M M I L L, Judge:
¶1 Daniel Hoyos petitions for review of the summary dismissal
of his second post-conviction proceeding commenced pursuant to Rule 32,
Ariz. R. Crim. P. We have considered his petition and, for the following
reasons, grant review but deny relief.
¶2 Hoyos pled guilty to three counts of attempted sexual
conduct with a minor, each a class 3 felony and dangerous crime against
children. The trial court sentenced him on May 31, 2012, to a mitigated
nine-year prison term to be followed by lifetime probation.
¶3 Hoyos filed a timely notice of post-conviction relief in which
he indicated intent to raise claims of ineffective assistance of counsel and
actual innocence. Appointed counsel was unable to find any claims to raise
in a Rule 32 post-conviction proceeding, and the trial court granted Hoyos
forty-five days to file a pro se petition. When Hoyos failed to file a petition
within one month after the deadline, the trial court dismissed the post-
conviction proceeding on April 2, 2013.
¶4 On September 24, 2013, Hoyos filed a second notice of post-
conviction relief in which he indicated intent to raise a variety of claims,
including breach of plea agreement, illegal sentence, improper judicial
participation in plea bargaining, ineffective assistance of trial and appellate
counsel, newly discovered evidence, and request for relief under a new
DNA statute. Noting the notice was both successive and untimely, the trial
court summarily dismissed the proceeding, ruling that Hoyos was
precluded from raising certain of the claims in the untimely and successive
proceeding and that he failed to state a colorable claim for relief with
respect to the non-precluded claims. Hoyos filed a timely petition for
review.
¶5 On review, Hoyos argues the trial court erred in dismissing
the post-conviction relief proceeding in regard to his claims of ineffective
assistance of trial and appellate counsel. The notice of post-conviction relief
filed by Hoyos in September 2013 is untimely because it was filed more than
eighteen months after his sentencing and more than five months after the
conclusion of his first post-conviction relief proceeding. See Ariz. R. Crim.
P. 32.4(a) (establishing time deadlines for filing notice of post-conviction
relief). “Any notice not timely filed may only raise claims pursuant to Rule
32.1(d), (e), (f), (g) or (h).” Id.; see also State v. Shrum, 220 Ariz. 115, 118, ¶
13, 203 P.3d 1175, 1178 (2009) (noting “few exceptions” to “general rule of
preclusion” for claims in untimely or successive petitions). Claims of
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STATE v. HOYOS
Decision of the Court
ineffective assistance of counsel do not fall within Rule 32.1(d), (e), (f), (g),
or (h) because they are “cognizable under Rule 32.1(a).” State v. Petty, 225
Ariz. 369, 373, ¶ 11, 238 P.3d 637, 641 (App. 2010). Thus, the trial court
correctly ruled that Hoyos was precluded from raising claims of ineffective
assistance of counsel in the untimely post-conviction relief proceeding.
¶6 Accordingly, although we grant review, we deny relief.
:ama
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