STATE v. APODACA
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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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. MICHAEL ANGELO APODACA, III, Petitioner. No. 1 CA-CR 16-0897 PRPC FILED 9-12-2017 Petition for Review from the Superior Court in Coconino County No. S0300CR20020038 The Honorable Mark R. Moran, Judge REVIEW GRANTED; RELIEF DENIED COUNSEL Coconino County Attorney’s Office, Flagstaff By William P. Ring Counsel for Respondent Michael Angelo Apodaca, III, Florence Petitioner STATE v. APODACA Decision of the Court MEMORANDUM DECISION Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Paul J. McMurdie joined. T H O M P S O N, Judge: ¶1 Petitioner Michael Angelo Apodaca, III, petitions this court for review from the summary dismissal of his third petition for postconviction relief. We have considered the petition for review and, for the reasons stated, grant review and deny relief. ¶2 A jury found Apodaca guilty of sexual assault, molestation of a child and sexual conduct with a minor in 2002. The trial court sentenced him to an aggregate term of twenty-seven years’ imprisonment and this court affirmed his convictions and sentences on direct appeal. Twelve years later, Apodaca filed his third petition for post-conviction relief and argued his trial counsel was ineffective for a variety of reasons; counsel in his first post-conviction relief proceeding was ineffective when counsel failed to raise those same claims against trial counsel; and that his appellate counsel was ineffective for failing to raise two issues. The trial court summarily dismissed the petition and Apodaca now presents the same issues for review. ¶3 We deny relief. Apodaca could have raised these claims in a prior post-conviction relief proceeding. Any claim a defendant could have raised in an earlier post-conviction relief proceeding is precluded. Ariz. R. Crim. P. 32.2(a). None of the exceptions under Rule 32.2(b) that would allow Apodaca to seek untimely relief apply. Further, regarding the claims against Apodaca’s first post-conviction relief counsel, ineffective assistance of post-conviction relief counsel is not a valid claim under Rule 32 unless made against counsel who provided representation in an “of-right” postconviction relief proceeding. State v. Pruett, 185 Ariz. 128, 130-31, 912 P.2d 1357, 1359-60 (App. 1995). Because Apodaca’s convictions and sentences resulted from a jury trial, his first post-conviction relief proceeding was not an “of-right” proceeding. See Ariz. R. Crim. P. 32.1. 2 STATE v. APODACA Decision of the Court ¶4 We grant review but deny relief. AMY M. WOOD • Clerk of the Court FILED: AA 3
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