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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              MICHAEL ANGELO APODACA, III, Petitioner.

                         No. 1 CA-CR 14-0794 PRPC
                              FILED 1-10-2017


    Petition for Review from the Superior Court in Coconino County
                           No. CR2002-0038
             The Honorable Mark R. Moran, Presiding Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Coconino County Attorney’s Office, Flagstaff
By David W. Rozema
Counsel for Respondent

Michael Angelo Apodaca, III, Florence
Petitioner



                       MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Paul J. McMurdie joined.
                           STATE v. APODACA
                           Decision of the Court

J O N E S, Judge:

¶1             Petitioner Michael Apodaca petitions this Court for review
from the summary dismissal of his second petition for post-conviction
relief. A jury found Apodaca guilty of sexual assault, molestation of a child,
and sexual conduct with a minor in 2002. This Court affirmed his
convictions and sentences on direct appeal.

¶2            The petition for review properly presents three issues.
Apodaca argues the prosecutor engaged in misconduct when he failed to
disclose evidence of the prior juvenile adjudications of the victim and other
witnesses and instead successfully moved to preclude that evidence. He
further argues his counsel was ineffective when counsel failed to
successfully oppose the prosecutor’s motion and that the trial court erred
when it granted the motion. Apodaca argues he can present these issues in
an untimely, successive petition for post-conviction relief because
amendments to Ethical Rule 3.8 that became effective in 2014 constitute a
significant change in the law.

¶3             We deny relief. First, Apodaca cites no authority to support
the proposition that a change to an ethical rule twelve years after a trial
constitutes a “significant change in the law” that permits filing an untimely,
successive petition for post-conviction relief. See Ariz. R. Crim. P. 32.1(g)
(authorizing petition for post-conviction relief if “[t]here has been a
significant change in the law that if determined to apply to defendant’s case
would probably overturn the defendant’s conviction or sentence”).
Moreover, Apodaca does not identify any relevant changes to Rule 3.8 or
how those changes have any application to his case.1 Second, filing and
successfully arguing a motion in limine does not constitute prosecutorial
misconduct; nor does unsuccessfully contesting that motion constitute
ineffective assistance of counsel.2 See State v. Ramirez, 126 Ariz. 464, 467
(App. 1980) (“To show ineffective assistance of counsel, the petitioner . . .
must do more than show that his counsel was unsuccessful . . . .”) (citing
State v. Watson, 120 Ariz. 441, 450 (1978)). Third, Apodaca argued on direct

1      The version of Rule 3.8 in effect at the time of Apodaca’s trial
required prosecutors to timely disclose all evidence or information known
to him that tends to negate guilt or mitigate the offense. Ariz. R. Sup. Ct.
42, ER 3.8(d) (2002). This provision remains unchanged in the current
version. Ariz. R. Sup. Ct. 42, ER 3.8(d) (2017).

2      Apodaca conceded below that his counsel opposed the motion in
limine and sought disclosure and admission of the evidence.


                                      2
                            STATE v. APODACA
                            Decision of the Court

appeal that the trial court erred when it granted the motion in limine. Any
claim a defendant raised on direct appeal is precluded. Ariz. R. Crim. P.
32.2(a).

¶4            Finally, the petition for review presents arguments that the
prosecutor engaged in misconduct when he failed to disclose exculpatory
material and his counsel was ineffective when he failed to compel
disclosure of that evidence. Apodaca did not raise those issues in the
petition for post-conviction relief he filed in the trial court. A petition for
review may not present issues not first presented to the trial court. See Ariz.
R. Crim. P. 32.9(c)(1)(ii) (stating petition for review must identify “[t]he
issues which were decided by the trial court and which the defendant wishes
to present to the appellate court for review”) (emphasis added); State v.
Vera, 235 Ariz. 571, 573-74, ¶ 8 (App. 2014) (citing Ramirez, 126 Ariz. at 468).

¶5            We therefore grant review but deny relief.




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




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