STATE OF ARIZONA v. LACY RIDDELL, JR.
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FILED BY CLERK NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND M AY 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. MAR -5 2009 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. LACY RIDDELL, JR., Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2008-0258-PR DEPARTMENT A MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR-17839 Honorable Howard Hantman, Judge REVIEW GRANTED; RELIEF DENIED Barbara LaWall, Pima County Attorney By Jacob R. Lines Lacy Riddell, Jr. Tucson Attorneys for Respondent Florence In Propria Persona P E L A N D E R, Chief Judge. ¶1 After breaking into the home of a ninety-seven-year-old woman and sexually assaulting her, petitioner Lacy Riddell, Jr. was convicted after a jury trial of aggravated assault, robbery, kidnapping, sexual assault, and second-degree burglary. In this petition for review, he challenges the trial court s order summarily dismissing a successive petition for post-conviction relief he filed pursuant to Rule 32, Ariz. R. Crim. P., on the ground that the claims were precluded. See Ariz. R. Crim. P. 32.2. Absent a clear abuse of discretion, we will not disturb the trial court s ruling. State v. Schrock, 149 Ariz. 433, 441, 719 P.2d 1049, 1057 (1986). ¶2 Riddell s convictions and the sentences imposed were affirmed by this court on appeal. State v. Riddell, Nos. 2 CA-CR 4658-3, 2 CA-CR 4659-4 (consolidated) (memorandum decision filed July 14, 1987). And this court has denied relief on review in at least five other post-conviction proceedings. State v. Riddell, No. 2 CA-CR 2006-0431-PR (memorandum decision filed May 14, 2007); State v. Riddell, No. 2 CA-CR 2005-0244-PR (memorandum decision filed Mar. 16, 2006); State v. Riddell, No. 2 CA-CR 2003-0067-PR (decision order filed Sept. 10, 2004); State v. Riddell, No. 2 CA-CR 01-0087-PR (memorandum decision filed Nov. 30, 2001); State v. Riddell, No. 2 CA-CR 91-0883 (order filed Feb. 12, 1992). In this proceeding, Riddell challenges the introduction of a videotaped interview on the third day of trial and seems to raise related claims of ineffective assistance of counsel and significant change in the law. ¶3 The trial court did not err when it found precluded the claims raised in this proceeding. Riddell has presented no colorable claim that falls within any of the exceptions to the rule of preclusion. See Ariz. R. Crim. P. 32.2. Specifically, he has not persuaded us that the Supreme Court s decision in Danforth v. Minnesota, ___ U.S. ___, 128 S. Ct. 1029 (2008), is a significant change in the law for purposes of Rule 32.1(g), entitling him to relief 2 based on Crawford v. Washington, 541 U.S. 36 (2004). Additionally, relying in part on Stewart v. Smith, 202 Ariz. 446, ¶ 10, 46 P.3d 1067, 1071 (2002), Riddell suggests fundamental error occurred, his constitutional rights were violated, and his claims are not, therefore, subject to Rule 32.2. He is mistaken. Even assuming, arguendo, error occurred here and the error could be characterized as fundamental, [n]ot all error that is fundamental involves the violation of a constitutional right that can be waived only if the defendant personally does so knowingly, voluntarily, and intelligently. State v. Swoopes, 216 Ariz. 390, ¶ 41, 166 P.3d 945, 958 (App. 2007). [I]f our supreme court had intended that fundamental error be an exception to preclusion under Rule 32.2, the court presumably would have expressly said so in the rule itself or the comment thereto. Id. ¶ 42. ¶4 We grant this petition for review, but for the reasons stated, we deny relief. ____________________________________ JOHN PELANDER, Chief Judge CONCURRING: ________________________________________ JOSEPH W. HOWARD, Presiding Judge ________________________________________ PHILIP G. ESPINOSA, Judge 3
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