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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      JOHN ALLEN ONTJES, Petitioner.

                          No. 1 CA-CR 16-0559 PRPC
                               FILED 10-24-2017


     Petition for Review from the Superior Court in Maricopa County
                        Nos. CR2007-169570-001SE
                             CR2008-178947-001
                   The Honorable Teresa Sanders, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

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

John Allen Ontjes, Florence
Petitioner
                             STATE v. ONTJES
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Michael J. Brown joined.


C A M P B E L L, Judge:

¶1            John Allen Ontjes petitions for review of the dismissal of his
petition for post-conviction relief (“PCR”) pursuant to Arizona Rule of
Criminal Procedure 32.1. We have considered the petition for review and
grant review but deny relief.

¶2             In Maricopa County case CR2007-169570-001 (“07 case”), a
jury convicted Ontjes of two counts of sale or transportation of dangerous
drugs, possession of dangerous drugs for sale, and possession of drug
paraphernalia, and acquitted him of misconduct involving weapons and
theft. Prior to sentencing, Ontjes admitted to three historical prior felonies.
The superior court sentenced Ontjes to the presumptive prison term of 3.75
years for possession of drug paraphernalia, and concurrent mitigated
prison terms of 14 years on each of the remaining offenses. 1 On direct
appeal, this court affirmed the convictions and sentences. State v. Ontjes,
1 CA-CR 09-0185, 2010 WL 2540491 (Ariz. App. Jun. 24, 2010) (mem.
decision).

¶3           In 2011, Ontjes filed a timely PCR and claimed that his trial
counsel had been ineffective (“IAC”). The superior court held an
evidentiary hearing. After the hearing, the superior court denied relief.
Ontjes sought review by this court, but the matter was dismissed. State v.
Ontjes, 1 CA-CR 11-0429 (Ariz. App. Aug. 24, 2011) (order).

¶4           In Maricopa County case CR2008-178947-001 (“08 case”),
Ontjes pled guilty to aggravated driving or actual physical control while
under the influence, with one historical prior felony. The superior court
sentenced Ontjes to the presumptive prison term of 4.5 years.

¶5            In September of 2015 Ontjes filed a notice of PCR in the 07 and
08 cases. This PCR was untimely in both cases, and a successive petition in


       1 The court ordered the sentences in both the 07 and 08 cases, see supra

¶ 4, to run concurrent to each other.


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                             STATE v. ONTJES
                            Decision of the Court

the 07 case. Ontjes alleged that his trial and post-conviction relief counsel
had been ineffective. Ontjes apparently believed that the 08 and 07 cases
were one case for purposes of appellate review as evidenced by the claims
he raised and cases he cited. He asserted that his IAC claim of his PCR
counsel in the 07 case was a cognizable claim pursuant to State v. Pruett, 185
Ariz. 128, 131 (App. 1995) (“pleading defendant constitutionally entitled to
the effective assistance of counsel on his first petition for post-conviction
relief” and “must be afforded an opportunity to assert a claim regarding the
effectiveness of the attorney representing him on the first petition for post-
conviction relief”).

¶6           Ontjes also claimed a significant change in the law excused
any “procedural default,” and entitled him to relief. The superior court
addressed each claim and summarily dismissed the PCR. This petition for
review followed.

¶7            We review a superior court’s ruling on a petition for post-
conviction relief for an abuse of discretion. State v. Gutierrez, 229 Ariz. 573,
577, ¶ 19 (2012). It is Ontjes’ burden on review to show that the superior
court abused its discretion. See State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App.
2011) (petitioner has burden of establishing abuse of discretion on review).

¶8              Ontjes has not sustained his burden on review. As noted,
Ontjes did not pursue PCR of-right proceedings in the 08 case. Thus, Pruett
has no application to his 08 case, and the PCR proceeding in the 08 case was
not of-right because it was untimely. Therefore, because of his untimely
filing, ineffective assistance of counsel is not a cognizable claim. See Ariz. R.
Crim. P. 32.4(a).

¶9             Ontjes also relies on Martinez v. Ryan, 566 U.S. 1 (2012).
However, Martinez did not constitute a significant change in state law
entitling petitioner to raise a claim of ineffective assistance of post-
conviction counsel. State v. Escareno-Meraz, 232 Ariz. 586, 587, ¶ 6 (App.
2013). Furthermore, contrary to Ontjes’ claim, Missouri v. Frye, 566 U.S. 134
(2012), and Lafler v. Cooper, 566 U.S. 156 (2012) were not significant changes
in the law. See Buenrostro v. U.S., 697 F.3d 1137, 1140 (9th Cir. 2012) (neither
Frye nor Lafler decided new rule of constitutional law).

¶10            Ontjes’ claims related to his 07 case were, or could have been,
raised in the earlier 07 case PCR proceeding. In failing to raise these claims,
they are precluded. Ariz. R. Crim. P. 32.2(a). Arizona Rule of Criminal
Procedure 32.1(a) provides as a ground for relief ineffective assistance of
counsel and claims under this subsection are not exempt from preclusion.



                                       3
                             STATE v. ONTJES
                            Decision of the Court

Ariz. R. Crim. P. 32.2(a)-(b); see also State v. Lopez, 234 Ariz. 513, 515, ¶ 8
(App. 2014) (under Ariz. Rev. Stat. § 13-4234(G) the time limits for filing a
notice and petition for post-conviction relief “are jurisdictional, and an
untimely filed notice or petition shall be dismissed with prejudice”).

¶11           Accordingly, we grant review but deny relief.




                         AMY M. WOOD • Clerk of the Court
                          FILED: AA




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