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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       ANTHONY VOLPE, Petitioner.

                         No. 1 CA-CR 14-0847 PRPC
                             FILED 3-7-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2009-144768-002
              The Honorable Lisa M. Roberts, Commissioner

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Anthony Volpe, Safford
Petitioner
                             STATE v. VOLPE
                            Decision of the Court




                       MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the court, in which
Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.


N O R R I S, Judge:

¶1           Anthony Volpe petitions this court for review from the
summary dismissal of his second petition for post-conviction relief. We
grant review, but deny relief.

¶2             In 2010, Volpe pled guilty to burglary in the first degree. At
his sentencing hearing, Volpe argued he could not be guilty of burglary
because he was a lawful occupant of the apartment where the offense
occurred (“lawful occupant defense”). He also argued his trial counsel was
ineffective for failing to adequately investigate his lawful occupant defense.
Accordingly, Volpe orally moved to withdraw from the plea agreement.
The superior court denied Volpe’s motion, and sentenced him to 15 years’
imprisonment.

¶3            In his 2011 petition for post-conviction relief of-right, Volpe
argued his trial counsel was ineffective, the prosecution failed to disclose
material evidence, and new evidence supported his lawful occupant
defense. The superior court summarily dismissed the petition. Volpe
petitioned this court for review. This court granted review, but denied
relief.

¶4             Volpe filed his second petition for post-conviction relief in
2014. In that petition, he argued he had additional newly discovered
evidence that supported his lawful occupant defense and again argued that
his trial counsel had been ineffective in failing to adequately investigate that
defense. Volpe further argued counsel who initially had represented him in
his petition for post-conviction relief of-right in 2011 had been ineffective
when she failed to raise this same claim of ineffective assistance of trial




                                       2
                             STATE v. VOLPE
                            Decision of the Court

counsel.1 As discussed, the superior court summarily dismissed Volpe’s
second petition for post-conviction relief.2

¶5            In his petition for review, Volpe continues to argue he has
newly discovered evidence that supports his lawful occupant defense, and
thus, he could not be guilty of burglary. Because, as discussed below, Volpe
has failed to present any colorable claims for relief based on newly
discovered evidence, the superior court properly dismissed his second
petition for post-conviction relief on that ground.

¶6           For a defendant to obtain post-conviction relief based on
newly discovered evidence:

              (1) the evidence must appear on its face to have
              existed at the time of trial but be discovered
              after trial;

              (2) the motion must allege facts from which the
              court could conclude the defendant was
              diligent in discovering the facts and bringing
              them to the court’s attention;

              (3) the evidence must not simply be cumulative
              or impeaching;

              (4) the evidence must be relevant to the case;

              (5) the evidence must be such that it would
              likely have altered the verdict, finding, or
              sentence if known at the time of trial.

State v. Bilke, 162 Ariz. 51, 52-53, 781 P.2d 28, 29-30 (1989) (citation
omitted).

              1Volpe filed a pro se petition for post-conviction relief of-right
after counsel found no colorable claims for relief.

              2The  superior court was incorrect when it broadly stated that
a defendant is not entitled to effective assistance of counsel in a post-
conviction relief proceeding. A defendant is entitled to effective assistance
of counsel in an “of-right” post-conviction proceeding. State v. Pruett, 185
Ariz. 128, 131, 912 P.2d 1357, 1360 (App. 1995).



                                       3
                             STATE v. VOLPE
                            Decision of the Court


¶7             Volpe’s “newly discovered evidence” consisted, in part, of
four affidavits. Three of the affidavits were from Volpe’s mother, his uncle,
and Volpe himself. These affidavits are not newly discovered evidence.
Further, Volpe offered no viable explanation as to why he could not have
obtained these affidavits, as well as the information contained in the
affidavits, for his first post-conviction proceeding. The fourth “affidavit”
was from a purported leasing agent for the apartment. The “affidavit” was
not signed, however, and was of no evidentiary value. As with the other
three affidavits, Volpe offered no viable explanation as to why he could not
have obtained this affidavit for his first post-conviction proceeding.
Further, the assertions contained in the affidavits signed by Volpe, his
mother, and his uncle regarding what the leasing agent allegedly said are
hearsay and fail to present colorable claims for relief.

¶8            Volpe also attached to his second petition for post-conviction
relief two additional documents—a rental application form and a receipt—
which he also attached to his first petition for post-conviction relief. These
documents, therefore, are not newly discovered. And, as we recognized in
our decision affirming the superior court’s summary dismissal of Volpe’s
first post-conviction proceeding, these documents failed to establish that
Volpe was a lawful occupant in the apartment.

¶9            Volpe also argues that both his trial counsel and post-
conviction relief of-right counsel were ineffective. Because Volpe failed to
present any colorable claims for relief based on newly discovered evidence,
he has not presented any colorable claims of ineffective assistance premised
on those same claims.

¶10              Finally, Volpe’s claim that his first post-conviction relief of-
right counsel was ineffective is also untimely. Volpe did not file his second
notice of post-conviction relief until ten months after this court issued its
mandate denying relief in Volpe’s first post-conviction proceeding. See
Ariz. R. Crim. P. 32.4(a) (notice of proceeding must be filed within 30 days
after the issuance of final order or mandate). “[C]ompliance with Rule 32 is
not a mere formality.” Canion v. Cole, 210 Ariz. 598, 600, ¶ 11, 115 P.3d 1261,
1263 (2005). A petitioner must “strictly comply” with Rule 32 to be entitled
to relief. Id. (citation omitted).




                                       4
                        STATE v. VOLPE
                       Decision of the Court

¶11       For the foregoing reasons, although we grant review, we deny
relief.




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




                                    5
