                                                                       FILED BY CLERK
                             IN THE COURT OF APPEALS                       MAY 26 2009
                                 STATE OF ARIZONA                          COURT OF APPEALS
                                   DIVISION TWO                              DIVISION TWO




                                             )          2 CA-CR 2007-0317
THE STATE OF ARIZONA,                        )          2 CA-CR 2007-0318
                                             )          2 CA-CR 2007-0319
                   Appellee/Respondent,      )          2 CA-CR 2008-0421-PR
                                             )          (Consolidated)
                   v.                        )          DEPARTMENT B
                                             )
SANG LE,                                     )          OPINION
                                             )
                     Appellant/Petitioner.   )
                                             )


                   APPEALS AND PETITION FOR REVIEW
                FROM THE SUPERIOR COURT OF PIMA COUNTY

              Cause Nos. CR-20051963, CR-20052383, and CR-20070403

                          Honorable Stephen C. Villarreal, Judge

                                     AFFIRMED
                                   REVIEW DENIED


Terry Goddard, Arizona Attorney General
 By Kent E. Cattani and Alan L. Amann                                             Tucson
                                                                   Attorneys for Appellee

Creighton Cornell, P.C.
 By Creighton Cornell                                                            Tucson
                                                        Attorney for Appellant/Petitioner


E C K E R S T R O M, Presiding Judge.
¶1            Following a jury trial, Sang Le was convicted of second-degree burglary in CR-

20070403. Le committed this offense while on probation from his earlier convictions for two

burglaries in CR-20051963 and CR-20052383. After his probation in these two matters was

revoked, Le received concurrent, presumptive prison terms of 3.5 years for each of the

burglaries. For the latest burglary, the trial court imposed an enhanced, presumptive sentence

of 11.25 years, to be served consecutively to those in the other cause numbers.

¶2            After sentencing, appellate counsel filed a motion to vacate judgment pursuant

to Rule 24.2(a)(3), Ariz. R. Crim. P., arguing “Strickland errors” had denied Le his

constitutional rights at trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984)

(holding reversal of conviction required if ineffective assistance of counsel deprived

defendant of constitutional rights). The trial court conducted several evidentiary hearings

on the matter before denying Le’s motion. The court also denied Le’s requests for further

hearings and for funding to retain expert witnesses to support his ineffective assistance

claims. Le now challenges the trial court’s post-sentencing rulings.

¶3            Le filed timely notices of appeal from his probation revocations and sentences

in CR-20051963 and CR-20052383, as well as from his conviction and sentence in CR-

20070403. We have consolidated the cases in this appeal.

¶4            However, as the state correctly asserts, this court cannot consider Le’s

arguments on appeal because they all concern ineffective assistance of trial counsel. Our

supreme court has clearly specified that “ineffective assistance of counsel claims are to be


                                              2
brought in Rule 32[, Ariz. R. Crim. P.,] proceedings. Any such claims improvidently raised

in a direct appeal . . . will not be addressed by appellate courts regardless of merit.” State v.

Spreitz, 202 Ariz. 1, ¶ 9, 39 P.3d 525, 527 (2002); see also State ex rel. Thomas v. Rayes, 214

Ariz. 411, ¶ 20, 153 P.3d 1040, 1044 (2007) (“We therefore hold, consistent with Spreitz,

that a defendant may bring ineffective assistance of counsel claims only in a Rule 32 post-

conviction proceeding—not before trial, at trial, or on direct review.”). As an intermediate

appellate court, we must follow the law as articulated by our supreme court. State v.

Bejarano, 219 Ariz. 518, ¶ 6, 200 P.3d 1015, 1017 (App. 2008).

¶5            We recognize that parallel language in Rules 24.2 and 32.1 appears to permit

a defendant to raise an ineffective assistance claim in a post-trial motion to vacate judgment.

Compare Ariz. R. Crim. P. 24.2(a)(3) (allowing court to vacate judgment on ground

“conviction was obtained in violation of the United States or Arizona Constitutions”), with

Ariz. R. Crim. P. 32.1(a) (allowing court to grant post-conviction relief if “[t]he conviction

or the sentence was in violation of the Constitution of the United States or of the State of

Arizona”). But such an interpretation of Rule 24 is foreclosed by Rule 32.2(a)(1), which

precludes a defendant from obtaining relief under Rule 32 on any ground “[r]aisable on direct

appeal under Rule 31[, Ariz. R. Crim. P.,] or on post-trial motion under Rule 24.” If we were

to conclude ineffective assistance claims were properly raisable under Rule 24, they could

never be brought under Rule 32. See Spreitz, 202 Ariz. 1, ¶ 4, 39 P.3d at 526. Because, in

the interest of procedural regularity, our supreme court has designated Rule 32 proceedings



                                               3
as the proper vehicle for raising such claims, Spreitz, 202 Ariz. 1, ¶¶ 7, 9, 39 P.3d at 526,

527, it therefore follows that defendants may not assert ineffective assistance of counsel

claims in post-trial motions under Rule 24.2.

¶6             Because Le has raised no claims cognizable on appeal, we affirm his

convictions and sentences in CR-20051963, CR-20052383, and CR-20070403.

¶7             When he submitted his reply brief, Le also filed a petition for review pursuant

to Rule 32.9, Ariz. R. Crim. P., in CR-20051963 and CR-20052383.1 We ordered the

petition for review consolidated with Le’s direct appeals. Generally, a petition for review

must be filed within thirty days of a trial court’s final decision on a petition for

post-conviction relief. Ariz. R. Crim. P. 32.9(c). A trial court may, however, grant an

extension of time for filing a petition for review, see id., and the trial court did so here after

denying Le’s petitions for post-conviction relief in CR-20051963 and CR-20052383.

Nevertheless, Le’s petition for review is still untimely because it was filed more than two

months after the deadline imposed by the trial court. Le acknowledges this defect, and, given

our discretion over post-conviction matters, we deny review of the petition on this ground.

See Ariz. R. Crim. P. 32.9(f); State v. Whipple, 177 Ariz. 272, 274 & n.4, 866 P.2d 1358,




       1
         Le has never filed a notice of, or petition for, post-conviction relief in CR-20070403.
Although he asks this court essentially to deem his appellate brief a petition for review and
decide the issues raised therein on the merits, in the exercise of our discretion and in the
interest of procedural regularity, we decline to do so. See Ariz. R. Crim. P. 32.9(f) (appellate
court’s review of post-conviction ruling discretionary); see also Ariz. R. Crim. P. 32.4(a)
(timely filing of post-conviction relief notice commences proceedings).

                                                4
1360 & n.4 (App. 1993) (noting discretionary power of appellate court to deny review of

petition for review).




                                           ____________________________________
                                           PETER J. ECKERSTROM, Presiding Judge

CONCURRING:




____________________________________
J. WILLIAM BRAMMER, JR., Judge




____________________________________
GARYE L. VÁSQUEZ, Judge




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