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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  RICHARD JAMES KIRTLEY, Petitioner.

                         No. 1 CA-CR 15-0144 PRPC
                              FILED 3-14-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2008-180683-001
                  The Honorable Cari A. Harrison, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Richard James Kirtley, San Luis
Petitioner



                       MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Margaret H. Downie joined.
                            STATE v. KIRTLEY
                            Decision of the Court

B E E N E, Judge:

¶1            Petitioner Richard James Kirtley petitions this Court for
review from the summary dismissal of his second petition for post-
conviction relief. A jury found Kirtley guilty of four drug offenses and the
trial court sentenced him to an aggregate term of twelve years’
imprisonment. This Court affirmed Kirtley’s convictions and sentences on
direct appeal. Kirtley argues his trial counsel and his first post-conviction
relief counsel were ineffective.

¶2             We deny relief. Kirtley could have raised the claims of
ineffective assistance of trial counsel in his first post-conviction relief
proceeding in 2013. Any claim a defendant could have raised in an earlier
post-conviction relief proceeding is precluded. Ariz. R. Crim. P. 32.2(a).
None of the exceptions under Rule 32.2(b) apply. Regarding ineffective
assistance of post-conviction relief counsel, a defendant is not entitled to
effective assistance of counsel in a post-conviction relief proceeding unless
the proceeding was an “of-right” proceeding. State v. Pruett, 185 Ariz. 128,
131 (App. 1995). Kirtley’s first proceeding was not an “of-right”
proceeding. Finally, the trial court dismissed Kirtley’s first post-conviction
proceeding in April 2014 and Kirtley did not file his second notice of post-
conviction relief until January 2015. Therefore, his claims are also untimely.
Ariz. R. Crim. P. 32.4(a).

¶3            We grant review but deny relief.




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




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