State v. Littleton ( 2015 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    RAMON DAMIEN LITTLETON, Petitioner.
    No. 1 CA-CR 13-0925 PRPC
    FILED 6-2-2015
    Appeal from the Superior Court in Maricopa County
    No. CR2012-007754-002
    The Honorable Christine E. Mulleneaux, Judge Pro Tem
    REVIEW GRANTED; RELIEF DENIED
    COUNSEL
    Maricopa County Attorney’s Office, Phoenix
    By Diane Meloche
    Counsel for Respondent
    Ramon Damien Littleton, Tucson
    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. LITTLETON
    Decision of the Court
    G E M M I L L, Judge:
    ¶1           Petitioner Ramon Damien Littleton petitions this court for
    review from the dismissal of his petition for post-conviction relief. We have
    considered the petition for review and, for the following reasons, grant
    review and deny relief.
    ¶2            Littleton pled guilty to aggravated robbery and the trial court
    sentenced him to the presumptive term of 3.5 years’ imprisonment.
    Littleton did not file a petition for post-conviction relief of-right. Littleton
    now seeks review of the summary dismissal of his first untimely petition
    for post-conviction relief. We have jurisdiction pursuant to Arizona Rule
    of Criminal Procedure 32.9(c).
    ¶3             Littleton argues the trial court breached the plea agreement
    when it sentenced him to a greater term of imprisonment than that
    stipulated to in the plea agreement; his trial counsel was ineffective; and the
    trial court erred when it dismissed the notice of post-conviction relief before
    Littleton filed an actual petition.
    ¶4             We deny relief. First, Littleton could have raised the claims
    regarding his sentence and ineffective assistance in a timely petition for
    post-conviction relief of-right. Ariz. R. Crim. P. 32.1(a), (c), 32.2(b). Any
    claim a defendant could have raised in an earlier post-conviction relief
    proceeding is precluded. 
    Id. at 32.2(a).
    The only excuse Littleton offered in
    the trial court for why he did not file a timely petition was that he was not
    aware he could file a petition for post-conviction relief. Lack of knowledge
    of the law is not sufficient to present a colorable claim that the failure to file
    a timely petition for post-conviction relief was not the petitioner’s fault. 
    Id. at 32.1(f).
    Further, Littleton was aware of his post-conviction relief rights
    because he signed a notice of rights of review the same day the trial court
    sentenced him, and that notice explained all of his rights to post-conviction
    relief, including the deadlines to seek relief. Finally, while Littleton argues
    he only recently discovered the alleged breach of the plea agreement, any
    alleged breach regarding a stipulated sentence would have been apparent
    immediately upon the pronouncement of sentence. See 
    id. at 32.1(e)(2).
    ¶5             Even if Littleton had sought relief in a timely fashion, we
    would deny relief. The trial court sentenced Littleton to the stipulated term
    of 3.5 years’ imprisonment - exactly as agreed upon in the plea agreement.
    Regarding ineffective assistance, Littleton does not present any intelligible
    argument regarding what counsel did or failed to do, how any action or
    2
    STATE v. LITTLETON
    Decision of the Court
    inaction of counsel fell below objectively reasonable standards, nor how
    any action or inaction of counsel prejudiced him. State v. Valdez, 
    167 Ariz. 328
    , 330 (1991). He has, therefore, failed to state a colorable claim for relief
    based on ineffective assistance of counsel. If Littleton meant to argue that
    counsel should have raised an issue regarding the alleged breach of the plea
    agreement at sentencing, counsel was not ineffective because, as noted
    above, there was no breach.
    ¶6             Regarding the failure to allow Littleton to file a petition
    below, Littleton’s notice was not a mere “bare bones” notice. Littleton’s
    notice was accompanied by several hand-written pages in which he
    identified the issues and provided argument supported with citation to
    authority, the record, exhibits, and an affidavit. Therefore, the “notice” also
    served as a petition. See Ariz. R. Crim. P. 32.5. Even if it had not, the trial
    court could summarily dismiss the proceedings based on the notice alone.
    When a defendant seeks to present issues in an untimely post-conviction
    relief proceeding, the notice must provide an adequate explanation for why
    the defendant did not raise those issues in a timely manner. 
    Id. at 32.2(b).
    If the notice fails to do so, “the notice shall be summarily dismissed.” 
    Id. As noted
    above, Littleton’s lack of knowledge of the law was not sufficient
    to require the court to consider an untimely petition for post-conviction
    relief and the court could properly dismiss the notice.
    ¶7             Finally, the petition for review presents issues regarding
    Littleton’s prior conviction in a 2009 case. If Littleton wishes to challenge
    his conviction or sentence in that case, he must do so in a post-conviction
    relief proceeding in that case.
    ¶8            For these reasons, we grant review but deny relief.
    :ama
    3
    

Document Info

Docket Number: 1 CA-CR 13-0925

Filed Date: 6/2/2015

Precedential Status: Non-Precedential

Modified Date: 4/18/2021