Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Nos. CR2005048697001DT; CR2006008123001DT; CR2009120677001DT The Honorable Rosa Mroz, Judge
William G. Montgomery, Maricopa County Attorney By Gerald R. Grant, Deputy County Attorney, Phoenix Counsel for Respondent
Brian O. Hopson, Tucson In Propria Persona
Chief Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez concurred and Judge Miller specially concurred.
HOWARD, Chief Judge:
¶1 After a jury trial, petitioner Brian Hopson was convicted of four counts of aggravated assault. The trial court imposed concurrent, maximum sentences of twenty years, to be served consecutively to the sentences in two other matters. Hopson then filed an appeal and initiated his first post-conviction proceeding, filed pursuant to Rule 32, Ariz. R. Crim. P. In a February 2011 ruling, filed while Hopson's appeal was pending, the court dismissed his post-conviction proceeding but granted him "leave to re-file at any time within 30 days following the issuance of the order and mandate on direct appeal, pursuant to Rule 32.4(a), [Ariz. R. Crim. P.]." See Ariz. R. Crim. P. 32.4(a) (defendant required to file notice of post-conviction relief "within thirty days after the issuance of the order and mandate in the direct appeal").
¶2 Pursuant to Hopson's request, we dismissed his appeal on August 8, 2011. State v. Hopson, Nos. 1 CA-CR 10-0397, 1 CA-CR 10-0398, 1 CA-CR 10-0399 (consolidated) (order filed Aug. 8, 2011). In a letter dated September 9, 2011, Hopson's appellate attorney, Stephen Collins, notified him the court of appeals had dismissed his appeal on August 8, 2011. Waiving the assistance of counsel, Hopson filed a pro se notice of post-conviction relief on September 22, 2011.
¶3 On the form Hopson used for his notice of post- conviction relief, he stated he was raising claims of ineffective assistance of counsel; checked the spaces indicating he was seeking relief based on newly discovered evidence and actual innocence under Rule 32.1(e) and (h); and also indicated that his untimely filing was through no fault of his own based on Rule 32.1(f). In a memorandum in support of the notice of post-conviction relief, Hopson explained his untimely filing by stating Collins had not notified him his appeal had been dismissed until September 9, 2011, more than thirty days after the dismissal order was filed.
¶4 In a September 2011 ruling, the trial court concluded that Hopson's notice of post-conviction relief was untimely, but found he had "sufficiently raised a colorable claim to permit this Rule 32 proceeding to move forward, " and thus permitted him to file a petition for post-conviction relief. However, the court also explained that its ruling did "not constitute any expression of opinion on the merits of any of defendant's substantive claims, or that any claims raised in the petition are not procedurally precluded." Hopson filed a pro se petition for post-conviction relief in December 2011 asserting, inter alia, claims of ineffective assistance of trial, appellate, and Rule 32 counsel, and a claim of "[p]ossibly newly discovered evidence."
¶5 In its April 2012 ruling summarily dismissing Hopson's petition, the trial court "agree[d] with the arguments set forth in the State's Response" to the petition, and further found "that there are no colorable claims for ineffective assistance of advisory counsel." In its response, the state had argued Hopson's notice of postconviction relief should be dismissed as untimely; Rule 32.1(f) does not apply to non-pleading defendants like Hopson; and, focusing solely on Hopson's claims of ineffective assistance of counsel, the state asserted the "claims are all precluded."
¶6 We will not disturb the trial court's ruling absent an abuse of discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). For the reasons set forth below, we find no abuse here. Rule 32.2(b), the rule of preclusion, is consistent with Rule 32.4, and states that when a defendant files a successive or untimely notice of post-conviction relief and wants to raise a claim under one of the subsections excepted from the rule of preclusion,
the notice of post-conviction relief must set forth the substance of the specific exception and the reasons for not raising the claim in the previous petition or in a timely manner. If the specific exception and meritorious reasons do not appear substantiating the claim and indicating why the claim was not stated in the previous petition or in a timely manner, the notice shall be summarily dismissed.
¶7 A defendant who fails to file a notice of post-conviction relief within the time limits set forth in Rule 32.4 may raise only claims that are cognizable under Rule 32.1(d), (e), (f), (g), or (h). Ariz. R. Crim. P. 32.4(a). And, because his notice was untimely, Hopson was required to establish that the untimeliness was not his fault before asserting any claims. See Ariz. R. Crim. P. 32.2(b). And assuming the court accepted Hopson's explanation for his untimely filing, to wit, that Collins had notified him his appeal had been dismissed more than thirty days after that ...