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State v. Widder

Court of Appeals of Arizona, Second Division, Department B

August 26, 2013

THE STATE OF ARIZONA, Respondent,
v.
NOELLE SUZANNE WIDDER, Petitioner.

Not for Publication Rule 111, Rules of the Supreme Court

PETITION FOR REVIEW FROM THE SUPERIOR COURT OF MARICOPA COUNTY Cause No. CR2006131875001DT Honorable Robert L. Gottsfield, Judge

Noelle S. Widder Goodyear In Propria Persona

MEMORANDUM DECISION

VIRGINIA C. KELLY, Presiding Judge

¶1 Pursuant to a plea agreement, petitioner Noelle Widder was convicted in 2007 of two counts each of sexual assault and attempted sexual assault, and ultimately was sentenced to consecutive, aggravated twelve-year prison terms on the sexual assault counts, to be followed by lifetime probation on the attempted sexual assault counts.[1] In 2007, Widder filed her first petition for post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P. The trial court granted relief, and resentenced Widder in 2009. Widder then filed three successive post-conviction pleadings, all of which the court dismissed. In April 2012, she initiated her fifth and most recent post-conviction proceeding, which the court also dismissed. Widder now seeks review from that dismissal. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We find no such abuse here.

¶2 In a ruling dated May 1, 2012, the trial court summarily dismissed Widder's most recent petition, correctly concluding the claims were precluded. See Ariz. R. Crim. P. 32.2(a)(2), (3) (precluding claims based on any ground "[f]inally adjudicated on the merits . . . in any previous collateral proceeding" or "[t]hat has been waived . . . in any previous collateral proceeding."). On review, Widder argues her attorneys were ineffective for failing to assert mitigating factors when she was sentenced originally and when she was resentenced, and that she was "highly medicated" and "confused" when she signed the plea agreement. She asks that she be resentenced.

¶3 First, because Widder could have, and in fact, did raise claims of ineffective assistance of counsel in prior post-conviction proceedings, she is precluded from doing so now. See Ariz. R. Crim. P. 32.2(a)(2), (3); see also State v. Spreitz, 202 Ariz. 1, ¶ 4, 39 P.3d 525, 526 (2002) ("Our basic rule is that where ineffective assistance of counsel claims are raised, or could have been raised, in a Rule 32 post-conviction relief proceeding, subsequent claims of ineffective assistance will be deemed waived and precluded.") (emphasis omitted). In addition, to the extent Widder argues her plea was not knowing, voluntary or intelligent, she is precluded from raising this claim in this successive post-conviction proceeding. See Ariz. R. Crim. P. 32.2(a)(2), (3). Moreover, Widder has not asserted her claims fall under any of the exceptions to preclusion set forth in Rule 32.2(b) (excepting from rule of preclusion claims raised under Rule 32.1(d), (e), (f), (g) and (h)).

¶4 Accordingly, although we grant Widder's petition for review, we deny relief.

CONCURRING: PHILIP G. ESPINOSA, Judge, PETER J. ECKERSTROM, Judge


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