STATE OF ARIZONA v. DONALD ALLEN GUADAGNI

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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. SEP 16 2009 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. DONALD ALLEN GUADAGNI, Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2009-0117-PR DEPARTMENT B MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR-20054436 Honorable Hector E. Campoy, Judge REVIEW GRANTED; RELIEF DENIED Donald Allen Guadagni Tucson In Propria Persona E C K E R S T R O M, Presiding Judge. ¶1 Following a jury trial, Donald Allen Guadagni was convicted of bigamy and ordered to pay restitution to his two victims. This court affirmed his conviction on appeal but vacated the restitution order, concluding the trial court had violated Guadagni s rights to due process and assistance of counsel by entering the order following an ex parte proceeding. State v. Guadagni, 218 Ariz. 1, ¶¶ 20, 24, 178 P.3d 473, 479, 480 (App. 2008). The matter was remanded for further proceedings, and following an evidentiary hearing, the trial court ordered Guadagni to pay a total of $2,464.77 in restitution to the victims. We affirmed that order on appeal. State v. Guadagni, No. 2 CA-CR 2008-0314 (memorandum decision filed June 26, 2009). ¶2 Guadagni filed a petition for post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P., arguing the trial court had violated his Sixth Amendment right to cross-examine one of his victims by prohibiting him from questioning her about her alleged pregnancy by another man during the time of her marriage to Guadagni. See U.S. Const. amend. VI. The court summarily denied relief, finding Guadagni s claim precluded under Rule 32.2(a)(1). We review the court s ruling for an abuse of discretion. See State v. Watton, 164 Ariz. 323, 325, 793 P.2d 80, 82 (1990). Finding none, we deny relief. ¶3 Rule 32.2(a)(1) provides [a] defendant shall be precluded from relief under this rule based upon any ground that was [r]aisable on direct appeal. Guadagni could have raised his claim on direct appeal. Moreover, he did not argue below, nor does he contend on review, that any of the exceptions to preclusion identified in Rule 32.2(b) apply to this case. Thus, the trial court did not abuse its discretion in finding Guadagni s claim 2 precluded, and although the court also addressed the merits of the claim, we need not do so here.1 We grant review of Guadagni s petition for review, but we deny relief. _______________________________________ PETER J. ECKERSTROM, Presiding Judge CONCURRING: _______________________________________ J. WILLIAM BRAMMER, JR., Judge _______________________________________ GARYE L. VÃ SQUEZ, Judge 1 To the extent Guadagni has attempted to raise on review a claim of ineffective assistance of appellate counsel, we do not address that claim here because it was not raised in the petition for relief below. See Rule 32.9(c)(1)(ii) (petitioner may raise on review issues decided by trial court). 3

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