State v. Littleton ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
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
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