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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              RAYMOND CARRION SANCHEZ, Petitioner.

                         No. 1 CA-CR 14-0338 PRPC
                                FILED 9-6-16


     Petition for Review from the Superior Court in Mohave County
                            No. CR-2007-1688
                   The Honorable Steven F. Conn, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Mohave County Attorney’s Office, Kingman
By Matthew J. Smith
Counsel for Respondent

Raymond Carrion Sanchez, Florence
Petitioner Pro Se



                       MEMORANDUM DECISION

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

D O W N I E, Judge:

¶1            Raymond Carrion Sanchez petitions for review from the
superior court’s summary dismissal of his notice of post-conviction relief.
For the following reasons, we grant review but deny relief.

                  FACTS AND PROCEDURAL HISTORY

¶2             Sanchez pleaded guilty to child molestation, a class 2 felony
and dangerous crime against children. In December 2008, the superior
court sentenced him in accordance with the terms of the plea agreement to
a mitigated twelve-year term of imprisonment. Sanchez filed a timely
notice of post-conviction relief, and the superior court appointed counsel to
represent him in the Rule 32 proceeding. Counsel thereafter filed a notice
of post-conviction review, stating that after reviewing the record, she could
find no claims for relief to raise. Sanchez thereafter filed a pro se petition for
post-conviction relief, asserting claims of ineffective assistance of counsel,
constitutional violations, breach of the plea agreement, and sentencing
violations. In April 2010, the superior court summarily dismissed the
petition, ruling Sanchez had failed to state a colorable claim for relief. This
Court denied review of the dismissal order.

¶3             Between May 2010 and November 2012, Sanchez commenced
three additional Rule 32 proceedings and filed multiple motions seeking
relief from his sentence — all of which were unsuccessful. In April 2014, he
commenced a fifth proceeding for post-conviction relief by filing a notice
indicating an intent to raise claims of newly discovered evidence,
ineffective assistance of counsel, prosecutorial misconduct, significant
change in the law, and actual innocence. Observing that the notice was
both untimely and successive, the superior court summarily dismissed the
proceeding because Sanchez had failed to make a significant showing of a
colorable claim cognizable in an untimely or successive Rule 32 proceeding.
Following the denial of his motion for rehearing, Sanchez sought this
Court’s review.

                                DISCUSSION

¶4           We review the summary dismissal of a post-conviction relief
proceeding for an abuse of discretion. State v. Bennett, 213 Ariz. 562, 566,
¶ 17 (2006). We may affirm the superior court’s ruling “on any basis
supported by the record.” State v. Robinson, 153 Ariz. 191, 199 (1987).

¶5          Sanchez seeks review of his guilty plea and sentence entered
in December 2008. But he does not address the superior court’s finding that


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                             STATE v. SANCHEZ
                             Decision of the Court

he failed to state a claim that can be raised in an untimely and successive
Rule 32 proceeding or explain how the court erred by summarily
dismissing the proceeding. See Ariz. R. Crim. P. 32.9(c)(1) (petition “shall”
set forth “reasons why the petition [for review] should be granted”). His
failure to comply with the requirements of Rule 32.9 is sufficient, in itself,
to deny review and relief. See Ariz. R. Crim. P. 32.9(f) (review
discretionary); State v. French, 198 Ariz. 119, 122, ¶ 9 (App. 2000) (summarily
rejecting claims for failure to comply with Rule 32 .9), disapproved on other
grounds by Stewart v. Smith, 202 Ariz. 446, 450, ¶ 10 (2002).

¶6              Waiver aside, though, we find no abuse of discretion. In an
untimely post-conviction proceeding like this one, a claim that does not fall
within Rule 32.1(d) through (h) is barred, regardless of whether the
defendant has knowingly, voluntarily, and intelligently waived it. Ariz. R.
Crim. P. 32.4(a); State v. Lopez, 234 Ariz. 513, 515, ¶¶ 6–8 (App. 2014); see also
State v. Shrum, 220 Ariz. 115, 118, ¶ 13 (2009) (noting “few exceptions” to
“general rule of preclusion” for claims in untimely or successive petitions).
Thus, Sanchez’s claims — with the exception of newly discovered evidence,
significant change in the law, and actual innocence — are precluded in this
untimely fifth post-conviction relief proceeding. See Ariz. R. Crim. P.
32.1(e), (g), (h).

¶7             Although the claims of newly discovered evidence,
significant change in the law, and actual innocence are not necessarily
barred, when a non-precluded claim is raised in a successive or untimely
proceeding, “the notice of post-conviction relief must set forth the
substance of the specific exception [to preclusion] and the reasons for not
raising the claim in the previous petition or in a timely manner.” Ariz. R.
Crim. P. 32.2(b). “If . . . meritorious reasons do not appear substantiating
the claim and indicating why the claim was not stated in the previous
petition or in a timely manner, the notice shall be summarily dismissed.” Id.
(Emphasis added.)

¶8             Sanchez’s notice of post-conviction relief, while indicating an
intent to raise an actual innocence claim, offers no substantiating facts and
does not explain why the claim could not have been raised in any of the
previous Rule 32 proceedings. Under these circumstances, the superior
court did not err by concluding Sanchez failed to state a colorable claim of
actual innocence.

¶9            The claim of significant change in the law is based on an
amendment to the Arizona Rules of Professional Conduct that became
effective January 1, 2014. This amendment states that a prosecutor is


                                        3
                             STATE v. SANCHEZ
                             Decision of the Court

obligated to disclose facts of which he or she becomes aware indicating that
an innocent defendant has been wrongly convicted. See Ariz. R. Sup. Ct.
42, Ariz. R. Prof’l Conduct, ER 3.8(g). As discussed supra, however, Sanchez
presented no facts supporting an actual innocence claim, and there is no
showing the amended rule applies to his case.

¶10             Finally, the alleged newly discovered evidence consists of
three pretrial witness interviews of two police detectives and a nurse that
trial counsel conducted prior to the plea agreement. The record reflects,
though, that Sanchez was aware of these interviews before his guilty plea.
Although he claims to have only come into possession of transcripts of the
interviews in February 2013, it is clear he was aware of their substance when
he filed his first petition for post-conviction relief, given his reference to the
interviews in that filing. Indeed, Sanchez filed a copy of one of the “newly
discovered” transcripts with the superior court on November 4, 2008 — a
month before his sentencing — and he later submitted a copy to this Court
on September 15, 2010, as part of a motion to expand the record regarding
his petition for review from the dismissal of his first petition for post-
conviction relief. State v. Sanchez, 1 CA-CR 10-0472 PRPC. Sanchez’s claim
that the interviews are “newly discovered evidence” is thus directly
contradicted by the record. See State v. Lemieux, 137 Ariz. 143, 146 (App.
1983) (in determining whether defendant has stated a colorable claim for
relief, allegations are viewed in light of entire record).

¶11           Even if the interviews were newly discovered, as the superior
court noted, their substance would not provide a basis for relief because the
interview evidence was merely impeaching in nature. See Ariz. R. Crim. P.
32.1(e) (defining claim of newly discovered evidence as not including
cumulative or impeachment evidence); State v. Mauro, 159 Ariz. 186, 207
(1988) (“Evidence relied on must not be merely cumulative or
impeaching.”). On the record before it, the superior court did not err by
concluding that Sanchez failed to state a colorable claim of newly
discovered evidence.




                                        4
                          STATE v. SANCHEZ
                          Decision of the Court

                              CONCLUSION

¶12           For the foregoing reasons, we grant the petition for review,
but deny relief.




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

                                           5
