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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               ROYCE EUGENE ARMBRUSTER, Petitioner.

                         No. 1 CA-CR 16-0327 PRPC
                              FILED 10-19-2017


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2005-128006-001SE
              The Honorable Christopher T. Whitten, Judge

              REVIEW GRANTED AND RELIEF DENIED


                                   COUNSEL

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

Royce Eugene Armbruster, Tucson
Petitioner
                         STATE v. ARMBRUSTER
                           Decision of the Court




                      MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Maria Elena Cruz joined.


H O W E, Judge:

¶1            Royce Eugene Armbruster petitions this Court for review
from the dismissal of his petition for post-conviction relief. We have
considered the petition for review and for the reasons stated, grant review
but deny relief.

¶2            Armbruster was convicted and sentenced to life in prison for
first-degree murder, kidnapping, and two counts of aggravated assault. He
appealed, and this Court affirmed the convictions and sentences. State v.
Armbruster, 1 CA-CR 10-0068, 2011 WL 2937202 (Ariz. App. Sep. 7, 2011)
(mem. decision).

¶3              In June 2014, Armbruster untimely petitioned for post-
conviction relief (“PCR”), in which he raised ineffective assistance of
counsel claims. The trial court summarily dismissed. Armbruster did not
petition for review. In February 2016, Armbruster filed a successive PCR.
He raised claims of “constitutional structural error” based on an “actual
irreconcilable conflict of interest.” He argued that “[w]hen the Rule 32
appointed counsel refused to find any colorable claims, [sic] to raise on the
defendant’s behalf, because of counsel’s actual irreconcilable conflict of
interest [sic].” Finding the claims untimely and precluded, the trial court
summarily dismissed.

¶4            Armbruster maintains on review that he was deprived of his
right to counsel and to effective assistance of counsel in his post-conviction
relief proceeding. Although unclear, Armbruster appears to argue that
because counsel in his first PCR did not raise any colorable claim, he was
essentially denied his right to counsel, and that counsel’s action created an
irreconcilable conflict.1 He further argues that the claim is not waived
because the error is structural. Whether Armbruster knowingly waived this
claim is not dispositive because non-pleading defendants like Armbruster


1      We note that Armbruster did not have counsel in his first PCR.


                                      2
                         STATE v. ARMBRUSTER
                           Decision of the Court

“have no constitutional right to counsel in post-conviction proceedings;
thus, despite the existence of state rules providing counsel, a claim that Rule
32 counsel was ineffective is not a cognizable ground for relief in a
subsequent Rule 32 proceeding.” State v. Escareno-Meraz, 232 Ariz. 586, 587
¶ 4 (App. 2013). Thus, contrary to Armbruster’s argument, his PCR was
properly subject to summary dismissal.

¶5            Accordingly, we grant review but deny relief.




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




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