                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                     STATE OF ARIZONA, Respondent,

                                        v.

                    ROBERT CLARK STUCK, Petitioner.

                         No. 1 CA-CR 13-0488 PRPC
                              FILED 3-26-2015


    Petition for Review from the Superior Court in Maricopa County
                           No. CR0000-149451
                 The Honorable Karen A. Mullins, Judge

                REVIEW GRANTED; RELIEF GRANTED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Arthur G. Hazelton, Jr.
Counsel for Respondent

Robert Clark Stuck, Buckeye
Petitioner
                             STATE v. STUCK
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge John C. Gemmill and Judge Kenton D. Jones joined.


K E S S L E R, Judge:

¶1           Robert Clark Stuck petitions for review of the dismissal of his
petition for post-conviction relief filed pursuant to Arizona Rule of
Criminal Procedure 32. Because the trial court erred in summarily
dismissing the petition based on a finding that the claim was precluded, we
grant review and relief and remand for further proceedings.

¶2            In 1985, a jury convicted Stuck of kidnapping, aggravated
assault, and three counts of sexual assault. The trial court sentenced Stuck
to consecutive maximum aggravated prison terms totaling ninety-nine
years. We affirmed the convictions and sentences on direct appeal. State v.
Stuck, 154 Ariz. 16, 739 P.2d 1333 (App. 1987).

¶3             On June 26, 2012, Stuck filed a notice of post-conviction relief
indicating intent to raise a claim of ineffective assistance of counsel during
plea negotiations. Stuck stated in his notice that there had been a significant
change in the law with respect to this type of claim, citing Lafler v. Cooper,
132 S. Ct. 1376 (2012), and Missouri v. Frye, 132 S. Ct. 1399 (2012). Appointed
counsel thereafter gave notice that after review of the record she could find
no claims to raise in a Rule 32 proceeding. Stuck then filed a pro se petition
and supporting affidavit alleging a claim of ineffective assistance of counsel
during plea negotiations. Specifically, Stuck alleged that the State offered
to permit him to plead guilty to one count of sexual assault and serve a flat-
time prison term of twenty-one years in exchange for dismissal of the other
four counts, and that his counsel’s deficient performance in failing to advise
him of the advantages of the plea agreement and the “improbability of
acquittal” led him to make an uniformed decision to reject the plea offer
and proceed to trial. The trial court summarily dismissed the petition,
ruling that the Supreme Court decisions cited by Stuck did not constitute a
significant change in the law. The court reasoned that Strickland v.
Washington, 466 U.S. 668 (1984) and Hill v. Lockhart, 474 U.S. 52 (1985) both
predated Stuck’s sentencing and provided him with the legal authority to
raise his ineffective assistance of counsel claim. The court held that his
claim was therefore precluded due to failure to raise it on direct appeal.


                                      2
                             STATE v. STUCK
                            Decision of the Court

¶4            On review, Stuck argues that the trial court erred in ruling
that his claim of ineffective assistance of counsel is precluded. We review
the summary dismissal of a petition for post-conviction relief for abuse of
discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17, 146 P.3d 63, 67 (2006).

¶5              The trial court abused its discretion in ruling that the claim of
ineffective assistance alleged by Stuck was precluded due to his failure to
raise it on direct appeal. Our supreme court has explained that the rule of
waiver and preclusion applies to subsequent claims of ineffective assistance
of counsel “where the ineffective assistance of counsel claims are raised, or
could have been raised, in a Rule 32 post-conviction relief proceeding.” State v.
Spreitz, 202 Ariz. 1, 2, ¶ 4, 39 P.3d 525, 526 (2002). Arizona has never
required that claims of ineffective assistance of counsel be raised on direct
appeal to avoid preclusive effect. Indeed, resolving ineffective assistance
claims through the Rule 32 process rather than direct appeal has long been
encouraged in order to permit criminal defendants an opportunity to
litigate the claims. Id. at 2-3, ¶¶ 6-9, 39 P.3d at 526-27. To clarify the issue
and avoid any further confusion regarding preclusion of ineffective
assistance claims on direct appeal, the court reiterated that the proper
forum for ineffective assistance claims was Rule 32 proceedings and held
that such claims would no longer be addressed in any fashion on direct
appeal. Id. at 3, ¶ 9, 39 P.3d at 527.

¶6              The matter presently before this Court involves Stuck’s first
petition for post-conviction relief. Because Stuck was sentenced in 1985 and
this is his first petition, the time limits for commencing a post-conviction
relief proceeding that became effective on September 30, 1992, do not apply.
See Moreno v. Gonzales, 192 Ariz. 131, 135, ¶ 22, 962 P.2d 205, 209 (1998)
(citing 171 Ariz. XLIV (1992), an order amending Rule 32). Thus, no basis
exists for dismissing the petition as either precluded or untimely.

¶7             In its response, the State argues that Stuck should be deemed
to have waived his claim by waiting too long to assert it. Rule 32, however,
does not provide for the summary dismissal of an otherwise timely claim
based on the doctrine of laches and the State cites no authority that supports
such a result.

¶8             The State also argues that Stuck failed to state a colorable
claim of ineffective assistance of counsel. The trial court did not reach this
issue due to its ruling that the claim was precluded. Given that the issue of
whether a petition for post-conviction relief states a colorable claim is to
some degree a discretionary decision for the trial court, State v. D’Ambrosio,
156 Ariz. 71, 73, 750 P.2d 14, 16 (1988), such a determination is more


                                       3
                            STATE v. STUCK
                           Decision of the Court

appropriately made by the trial court in the first instance. Thus, we leave
that issue for the trial court on remand and express no opinion on the merits
of Stuck’s allegations or whether he has stated a colorable claim. See State
v. Martinez, 226 Ariz. 464, 467, ¶ 12, 250 P.3d 241, 244 (App. 2011).

¶9            For the reasons stated, we grant review and relief and remand
for further proceedings consistent with this decision.




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