                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                 STANLEY EDWARD WRIGHT, Petitioner.

                         No. 1 CA-CR 14-0599 PRPC
                              FILED 8-30-2016


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2011-007843-001
                 The Honorable Karen A. Mullins, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Stanley Edward Wright, Buckeye
Petitioner Pro Se
                            STATE v. WRIGHT
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Margaret H. Downie joined.



T H U M M A, Judge:

¶1            Petitioner Stanley Edward Wright seeks review of the
superior court’s order denying his second notice of post-conviction relief,
filed pursuant to Arizona Rule of Criminal Procedure 32.1 (2016).1 Absent
an abuse of discretion or error of law, this court will not disturb a superior
court’s ruling on a petition for post-conviction relief. State v. Gutierrez, 229
Ariz. 573, 577 ¶ 19 (2012). Because Wright has shown no such error, this
court grants review but denies relief.

¶2           A jury convicted Wright of sale of dangerous drugs and, in
August 2013, he was sentenced to a mitigated 14-year prison term. In
February 2014, Wright filed a notice of post-conviction relief indicating an
intent to file an out-of-time appeal. The superior court summarily
dismissed the notice, finding Wright failed to provide sufficient factual
basis to support the claim. See Ariz. R. Crim. P. 32.2(b). Wright did not seek
review of that dismissal.

¶3            In July 2014, Wright filed a second notice of post-conviction
relief, which the superior court construed as stating an intent to raise a
claim under Rule 32.1(f) that the failure to file a timely notice of post-
conviction relief was without fault on his part. The court found the second
notice untimely and successive and, noting that Wright was not entitled to
a proceeding for post-conviction relief “of right,” summarily dismissed the
notice because Wright failed to state a claim upon which relief could be
granted in an untimely Rule 32 proceeding. This petition for review
followed.

¶4             Wright argues the superior court erred in ruling he failed to
state a claim for relief that could be raised in an untimely proceeding. The
court construed Wright’s second notice of post-conviction relief as seeking

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


                                       2
                             STATE v. WRIGHT
                             Decision of the Court

to raise a claim that the failure to file a timely notice of post-conviction relief
was without fault on his part. Such an interpretation is understandable as
Wright concluded the statement of facts supporting his claim as follows:
“As such, the failure to file a notice of post-conviction relief within 90 days
of the superior court’s judgment was without fault on the petitioner’s part.”
In his petition for review, however, Wright frames his claim as one of
ineffective assistance of trial counsel for incorrectly informing him that his
notice of appeal would go through automatically.

¶5            Under the superior court’s interpretation, summary dismissal
was proper. Wright was convicted following a jury trial. Consequently, he
was not entitled to relief under Rule 32.1(f), which authorizes a claim that
“defendant’s failure to file a notice of post-conviction relief of-right or
notice of appeal was without fault on his part,” because, as a non-pleading
defendant, his Rule 32 proceeding was not “of right.” See Ariz. R. Crim. P.
32.1 (defining “Rule 32 of right proceeding” as involving person “who pled
guilty or no contest, admitted a probation violation, or whose probation
was automatically violated based upon a plea of guilty or no contest”).

¶6              Even assuming Wright’s notice claimed ineffective assistance
of trial counsel, Wright is not entitled to relief. The notice was both untimely
and successive. “Any notice not timely filed may only raise claims pursuant
to Rule 32.1(d), (e), (f), (g) or (h).” Ariz. R. Crim. P. 32.4(a). Wright’s claim
of ineffective assistance of trial counsel does not fall within Rule 32.1(d), (e),
(f), (g) or (h) because it is cognizable under Rule 32.1(a). State v. Petty, 225
Ariz. 369, 372 ¶ 10 (App. 2010); see also Ariz. R. Crim. P. 32.1(a) cmt. (noting
claims of ineffectiveness of counsel and violations of other constitutional
rights fall under this subsection). Accordingly, Wright may not raise such a
claim in an untimely proceeding. Ariz. R. Crim. P. 32.4(a).

¶7            Nor can the claim for relief be saved by construing it as a claim
under Rule 32.1(f) that Wright’s failure to file a timely notice of appeal was
without fault on his part. While such a claim is not necessarily precluded
from being raised in an untimely or successive post-conviction proceeding,
Wright previously raised this claim in his first post-conviction proceeding.
A defendant is precluded from raising a claim that was or could have been
raised in a previous post-conviction proceeding. Ariz. R. Crim. P. 32.2(a);
State v. Shrum, 220 Ariz. 115, 118 ¶ 12 (2009). Thus, regardless of the precise
nature of the claim sought to be raised by Wright, superior court properly
dismissed his second notice of post-conviction relief. See also State v.
Robinson, 153 Ariz. 191, 199 (1987) (noting this court may affirm superior
court’s ruling “on any basis supported by the record”).



                                        3
                           STATE v. WRIGHT
                           Decision of the Court

¶8             For the foregoing reasons, although this court grants review,
relief is denied.




                         Amy M. Wood • Clerk of the court
                         FILED: AA




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