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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              LUIS MIGUEL LOPEZ MENDOZA, Petitioner.

                         No. 1 CA-CR 18-0419 PRPC
                              FILED 12-20-2018


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2016-156671-001
                     The Honorable Erin Otis, Judge

                  REVIEW GRANTED; RELIEF DENIED


                               APPEARANCES

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

Luis Miguel Lopez Mendoza, Florence
Petitioner



                       MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Jennifer B. Campbell joined.
                             STATE v. MENDOZA
                             Decision of the Court

B E E N E, Judge:

¶1             Luis Miguel Lopez Mendoza petitions this Court for review
from the dismissal of his petition for post-conviction relief filed pursuant to
Arizona Rule of Criminal Procedure (“Rule”) 32. We have considered the
petition for review and, for the reasons stated, grant review but deny relief.

¶2            After Mendoza pled guilty to sexual conduct with a minor
under the age of 15 and two counts of attempted sexual conduct with a
minor under the age of 15, the superior court entered judgment on October
26, 2017, and imposed a 25-year prison term to be followed by lifetime
probation. On May 10, 2018, Mendoza filed a notice for post-conviction
relief and requested appointment of counsel. Finding Mendoza presented
no adequate explanation for the delay in filing the notice, the superior court
dismissed it as untimely without first appointing counsel. See Ariz. R.
Crim. P. 32.4(a)(2)(C) (petitioners must generally file of-right notice of post-
conviction relief no later than 90 days after entry of judgment and
sentencing). We review for an abuse of discretion. State v. Bowers, 192 Ariz.
419, 422, ¶ 10 (App. 1998).

¶3             Mendoza concedes that his “Rule 32 proceeding is untimely
by more than 3 months in this case.” As he did in superior court, Mendoza
attributes the untimeliness to ineffective assistance of counsel (“IAC”), who
he claims forgot to file a notice. See Ariz. R. Crim. P. 32.1(f) (failure to file a
timely Rule 32 Petition due to no fault of defendant is grounds for relief);
see also State v. Rosales, 205 Ariz. 86, 89, ¶ 10 (App. 2003) (“Rule 32.1(f) is
atypical of the eight possible grounds for post-conviction relief listed in
Rule 32.1(a) through (h); it merely provides a procedural mechanism
whereby a defendant who has failed to appeal through no fault of his or her
own can obtain jurisdiction in this court.”). After discovering counsel did
not file a Rule 32 notice, Mendoza asserts he promptly filed one before filing
the May 10 notice. However, as the superior court correctly noted,
Mendoza’s putative notice does not appear in the record, and Mendoza
does not indicate the date he purportedly filed it. Mendoza does not
otherwise corroborate his cursory IAC claim. The court did not abuse its
discretion by summarily dismissing Mendoza’s untimely claim of IAC. See
Strickland v. Washington, 466 U.S. 668, 687-886, 692-93 (1984) (a colorable
claim of ineffective assistance of counsel requires a defendant to show
counsel’s performance fell below objectively reasonable standards and the
deficient performance was prejudicia.); State v. Santanna, 153 Ariz. 147, 150
(1987) (“Proof of ineffectiveness must be to a demonstrable reality rather
than a matter of speculation.”).



                                        2
                            STATE v. MENDOZA
                            Decision of the Court

¶4             We reject Mendoza’s four remaining arguments because they
are meritless. First, he contends “a significant change in the law has
occurred that could affect the outcome if applied retroactively to his case.“
Mendoza, however, does not refer to a statute or any legal precedent, nor
does he otherwise explain the change in the law that purportedly occurred.
Mendoza also does not sufficiently explain why he failed to file his Rule 32
notice in a timely manner as required by Rule 32.2(b).

¶5             Second, Mendoza asserts “because the trial court [ ] abused its
discretion in this case, that the court lost jurisdiction over the subject matter
in this case.” This assertion is incorrect; the superior court has jurisdiction
over state felony criminal matters, including Rule 32 proceedings. Ariz.
Const. art. 6, § 14; Ariz. R. Crim. P. 32.1, 32.3; State v. Maldonado, 223 Ariz.
309, 312-13, ¶¶ 20-21 (2010).

¶6            Third, Mendoza claims an evidentiary hearing was required
to address his IAC claim based on counsel’s alleged failure to timely file a
Rule 32 notice. Because Mendoza did not raise a colorable IAC claim,
however, the superior court properly refrained from conducting a hearing.
See State v. D’Ambrosio, 156 Ariz. 71, 73 (1988) (noting a defendant who
presents a colorable claim is entitled to an evidentiary hearing).

¶7             Finally, to the extent Mendoza contends he was entitled to
appointment of Rule 32 counsel, he is incorrect. His untimely-filed Rule 32
notice was “facially non-meritorious,” thus, the court was not required to
appoint counsel before dismissing the post-conviction relief proceedings.
See State v. Harden, 228 Ariz. 131, 134, ¶ 11 (App. 2011).

¶8            We grant review but deny relief.




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




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