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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 LAMAR VALDEN SIMMONS, Petitioner.

                         No. 1 CA-CR 13-0677 PRPC
                             FILED 4-21-2015

    Petition for Review from the Superior Court in Maricopa County
                           No. CR 1987-001119
                 The Honorable Karen A. Mullins, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Lamar Valden Simmons, Florence
Petitioner Pro Se



                       MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Kenton D. Jones joined.
                            STATE v. SIMMONS
                            Decision of the Court

T H O M P S O N, Judge:

¶1             Lamar Valden Simmons petitions for review of the dismissal
of his fifth post-conviction relief proceeding commenced pursuant to Rule
32, Ariz. R. Crim. P. We have considered his petition and, for the reasons
stated, grant review but deny relief.

¶2           In 1987, Simmons plead guilty, pursuant to a plea agreement,
to two counts of first degree burglary, two counts of sexual assault, and one
count of aggravated assault. The trial court sentenced Simmons to
concurrent and consecutive prison terms totaling forty-two years.

¶3             The trial court has previously dismissed post-conviction relief
proceedings commenced by Simmons in 1993, 2009, 2011, and 2013. In his
most recent notice of post-conviction relief, Simmons alleged a claim of
ineffective assistance of counsel and implicitly asserted that his claim,
although untimely, was permissible because the Supreme Court’s decisions
in Missouri v. Frye, 132 S. Ct. 1399 (2012), and Martinez v. Ryan, 132 S. Ct.
1309 (2012), constitute significant changes in the law. Noting that the notice
was both successive and untimely and finding that the decisions cited by
Simmons did not constitute significant changes in the law that would entitle
him to relief, the trial court summarily dismissed the notice. This petition
for review followed.

¶4            We review the summary dismissal of a post-conviction relief
proceeding for abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17,
146 P.3d 63, 67 (2006). We may uphold the trial court’s ruling on any basis
supported by the record. State v. Robinson, 153 Ariz. 191, 199, 735 P.2d 801,
809 (1987).

¶5              Simmons argues that the trial court erred by dismissing his
notice before he filed his petition for post-conviction relief. The trial court
is authorized to summarily dismiss an untimely or successive notice of
post-conviction relief when the notice fails to raise a claim under Rules
32.1(d), (e), (f), (g), and (h). Ariz. R. Crim. P. 32.2(b). There was no error
by the trial court in dismissing the notice filed by Simmons because a claim
of ineffective assistance of counsel does not fall within any of the exceptions
to dismissal under Rule 32.2(b) and Simmons failed to raise a claim of
significant change in the law that would entitle him to relief. See Ariz. R.
Crim. P. 32.1(g), 32.4(a) (claim of significant change in law can be raised in
untimely notice for post-conviction relief); State v. Petty, 225 Ariz. 369, 373,
¶ 11, 238 P.3d 637, 641 (App. 2010) (claim of ineffective assistance of
counsel, standing alone, grounded in Rule 32.1(a)).


                                       2
                            STATE v. SIMMONS
                            Decision of the Court

¶6             In Frye, the Supreme Court held a defendant has a right to
effective assistance of counsel during the plea bargain process. 132 S. Ct. at
1407–1408. Frye, however, does not constitute a significant change in the
law as applied in Arizona. This state has long recognized that the right to
effective assistance of counsel extends to the plea bargain process. State v.
Donald, 198 Ariz. 406, 413, ¶ 14, 10 P.3d 1193, 1200 (App. 2000). Although
Donald was decided after Simmons pled guilty, Simmons could have raised
any issue of ineffective assistance of counsel regarding his plea bargain or
sentencing years ago. Any claim Simmons could have raised in a previous
post-conviction relief proceeding is precluded. See Ariz. R. Crim. P. 32.2(a);
see also Ariz. R. Crim. P. 32.2(c) (“[A]ny court on review of the record may
determine and hold that an issue is precluded. . . .”).

¶7            In Martinez, the Court held:

              Where, under state law, claims of ineffective
              assistance of trial counsel must be raised in an
              initial-review     collateral   proceeding,      a
              procedural default will not bar a federal habeas
              court from hearing a substantial claim of
              ineffective assistance at trial if, in the initial-
              review collateral proceeding, there was no
              counsel or counsel in that proceeding was
              ineffective.

132 S. Ct. at 1320. This simply means Simmons can seek habeas corpus
relief in federal court based on ineffective assistance of trial counsel if he
can first show either he had no counsel in his first post-conviction relief
proceeding or counsel in his first post-conviction relief proceeding was
ineffective. Martinez does not require a state court to consider all untimely
claims of ineffective assistance of counsel raised in post-conviction
proceedings. State v. Escareno-Meraz, 232 Ariz. 586, 587, ¶¶ 5-6, 307 P.3d
1013, 1014 (App. 2013).




                                      3
                 STATE v. SIMMONS
                 Decision of the Court

¶8   Accordingly, although we grant review, we deny relief.




                       :ama




                              4
