STATE OF ARIZONA v. ERNESTO RODRIGUEZ-CASTRUITA

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FILED BY CLERK NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 OCT 12 2012 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. ERNESTO RODRIGUEZ-CASTRUITA, Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2012-0362-PR DEPARTMENT B MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF YAVAPAI COUNTY Cause No. P1300CR20081139 Honorable CelÃ© Hancock, Judge REVIEW GRANTED; RELIEF DENIED Sheila Sullivan Polk, Yavapai County Attorney By Dana E. Owens Ernesto Rodriguez-Castruita K E L L Y, Judge. Prescott Attorneys for Respondent Tucson In Propria Persona ¶1 Ernesto Rodriguez-Castruita seeks review pursuant to Rule 32.9(c), Ariz. R. Crim. P., of the trial court s order denying his motion to reinstate his post-conviction relief proceeding brought pursuant to Rule 32. For the reasons that follow, we grant review but deny relief. ¶2 Rodriguez-Castruita pled guilty to reckless manslaughter and the trial court sentenced him to an aggravated fourteen-year prison term. Rodriguez-Castruita filed a notice of post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but had found no claims for relief to raise in a post-conviction proceeding. On May 20, 2010, the court ordered that Rodriguez-Castruita would have forty-five days to file a pro se petition. He did not file a petition and the court dismissed the Rule 32 proceeding on August 5, 2010, stating it had reviewed the filings and record and found no basis for post-conviction relief. ¶3 On August 25, 2011, Rodriguez-Castruita filed a motion for praecipe and to re-instate Rule (32) proceedings, requesting permission to file a delayed petition pursuant to Rule 32.1(e) and raising various claims related to his sentencing. Noting the Rule 32 proceeding had been dismissed, the trial court denied the motion on September 7. Rodriguez-Castruita sought reconsideration of that ruling on September 19, which the court denied. This petition for review followed. ¶4 It is not entirely clear how to properly characterize Rodriguez-Castruita s various filings below. Nothing in Rule 32 contemplates a motion to reinstate a dismissed proceeding. To the extent heintended his motion as an attempt to seek rehearing pursuant 2 to Rule 32.9(a), it was not filed timely and his petition for review from the trial court s denial of that motion also is untimely. Ariz. R. Crim. P. 32.9(c). Nothing in Rule 32 provides that a motion for reconsideration of the denial of a motion for rehearing extends the time to file a petition for review. Cf. State v. Berry, 133 Ariz. 264, 267, 650 P.2d 1246, 1249 (App. 1982) (motion for reconsideration does not extend time for appeal). ¶5 However, although the trial court apparently did not treat it as such, Rodriguez-Castruita s motion to reinstate his Rule 32 proceeding cited Rule 32.1(e) and at least arguably could be construed as a successive petition for post-conviction relief.1 But even if we so generously construe Rodriguez-Castruita s motion, he is not entitled to relief. Rule 32.1(e) provides as a ground for relief that [n]ewly discovered material facts probably exist and such facts probably would have changed the verdict or sentence. And a claim under Rule 32.1(e) is not subject to preclusion pursuant to Rule 32.2(a) and may be raised in a successive petition. Ariz. R. Crim. P. 32.2(b). Rodriguez-Castruita s filing below and his petition for review do not identify any newly discovered material facts as contemplated by Rule 32.1(e), much less explain why his claim was not raised previously, see Ariz. R. Crim. P. 32.2(b), and instead appear to raise a claim of ineffective assistance of trial counsel at sentencing and various other sentencing claims. Those claims are precluded because he did not raise them in his first Rule 32 proceeding. 1 If construed as such, then Rodriguez-Castruita s motion for reconsideration, if treated as a motion for rehearing, would extend the time for filing a petition for review and render his petition filed in this court timely under Rule 32.9(c). 3 See Ariz. R. Crim. P. 32.2(a)(3). Thus, the trial court did not err in denying RodriguezCastruita s motion summarily. ¶6 For the reasons stated, although review is granted, relief is denied. /s/ Virginia C. Kelly VIRGINIA C. KELLY, Judge CONCURRING: /s/ Garye L. VÃ¡squez GARYE L. VÃ SQUEZ, Presiding Judge /s/ Philip G. Espinosa PHILIP G. ESPINOSA, Judge 4

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