STATE OF ARIZONA v. TIMOTHY LYNN KREUS

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IN THE ARIZONA COURT OF APPEALS DIVISION TWO THE STATE OF ARIZONA, Respondent, v. TIMOTHY LYNN KREUS, Petitioner. No. 2 CA-CR 2017-0194-PR Filed October 2, 2017 THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24. Petition for Review from the Superior Court in Pima County No. CR20100688001 The Honorable Deborah Bernini, Judge REVIEW GRANTED; RELIEF DENIED Timothy Kreus, Florence In Propria Persona STATE v. KREUS Decision of the Court MEMORANDUM DECISION Judge Espinosa authored the decision of the Court, in which Presiding Judge Staring and Judge Kelly1 concurred. E S P I N O S A, Judge: ¶1 Timothy Kreus seeks review of the trial court’s summary dismissal of his untimely, successive notice of and petition for postconviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P.2 We will not disturb that ruling unless the court clearly has abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Kreus has not met his burden of demonstrating such abuse here. ¶2 Following a jury trial in 2011, Kreus was convicted of attempted kidnapping, kidnapping, aggravated assault with a deadly weapon, and assault. The trial court sentenced him to two concurrent life terms of imprisonment and a consecutive, aggravated prison term of twenty-eight years. We affirmed the convictions and sentences on appeal. State v. Kreus, No. 2 CA-CR 2011-0385, ¶ 1 (Ariz. App. Jan. 31, 2013) (mem. decision). The court denied as untimely Kreus’s first notice of post-conviction relief, filed in August 2013. 3 In October 2013, Kreus initiated his second post-conviction proceeding, and after 1 The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court. 2 Although Kreus calls one of his filings in this proceeding a “Petition for Post-Conviction Relief,” it more closely resembles a notice. 3 Although that notice and order are not part of the record before us, Kreus does not dispute the procedural history as set forth by the trial court, and we thus presume the record supports it. 2 STATE v. KREUS Decision of the Court appointed counsel filed a notice of completion of post-conviction review stating he was unable to find any claims to raise, the court permitted Kreus to file a supplemental, pro se petition. Kreus failed to do so by the court-imposed deadline of March 7, 2014, and the court dismissed his notice in May 2014. ¶3 More than two years later, on August 22, 2016, Kreus wrote a letter to the trial court asking that an attorney be appointed or a hearing set to “hear [his] arguments” about what “was wrong with [his] whole case and trial.” The court denied his request, and Kreus then filed the underlying notice of and petition for postconviction relief, initiating his third post-conviction proceeding. The court subsequently dismissed Kreus’s notice, in which he asserted he was raising a claim based on newly discovered evidence pursuant to Rule 32.1(e), contending he did not discover “material evidence supporting [his] claim” until “8-22-16,” and that such evidence would establish he did not testify at trial because the court, the prosecutor, and trial counsel had misled him to believe he would receive a longer sentence if he testified. He also contended trial counsel had been ineffective and that employees from the Department of Corrections had denied him access to his paperwork. In its order dismissing Kreus’s notice, the court found “any issues that may have existed have either been adjudicated on their merits or waived,” and that “[t]his new request to challenge the effectiveness of trial counsel because he advised [Kreus] not to testify is not ‘newly discovered’ evidence and could have been raised in one of the two earlier [p]etitions.” ¶4 On review, Kreus reasserts his claims, suggesting the trial court improperly dismissed his notice. Notably, Kreus contends that, although he was aware of the newly discovered evidence when he filed his second Rule 32 notice in 2013, he did not submit that evidence until he filed the underlying notice in 2017, “when copies could be made.” To be entitled to a claim of newly discovered evidence, a defendant must first demonstrate the evidence is, in fact, newly discovered. State v. Serna, 167 Ariz. 373, 374, 807 P.2d 1109, 1110 (1991) (describing five elements of successful newly discovered evidence claim). Even assuming such information could constitute 3 STATE v. KREUS Decision of the Court newly discovered evidence, Kreus has utterly failed to establish such a claim. ¶5 Moreover, Kreus’s claim of ineffective assistance of counsel falls under Rule 32.1(a). See State v. Petty, 225 Ariz. 369, ¶ 11, 238 P.3d 637, 641 (App. 2010). Consequently, he was barred from raising it in an untimely post-conviction proceeding, like this one. See Ariz. R. Crim. P. 32.4(a). As we stated in State v. Rosales, 205 Ariz. 86, ¶ 11, 66 P.3d 1263, 1267 (App. 2003), with respect to claims under Rule 32.1(a) through (c), “no exception to the preclusion or timeliness rules exists.” Because Kreus failed to raise any viable claim in this successive post-conviction relief proceeding, the trial court did not abuse its discretion in summarily dismissing his notice as untimely and precluded. See Ariz. R. Crim. P. 32.2(a), 32.4(a). ¶6 Accordingly, although we grant review, relief is denied. 4

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