NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
RICHARD J. WASHINGTON, Petitioner.
No. 1 CA-CR 13-0328 PRPC
FILED 2-19-2015
Petition for Review from the Superior Court in Maricopa County
No. CR 1989-010859
The Honorable Jo Lynn Gentry, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Richard J. Washington, Buckeye
Petitioner Pro Se
STATE v. WASHINGTON
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Jon. W. Thompson and Judge Kent E. Cattani joined.
KESSLER, Judge:
¶1 Petitioner Richard J. Washington seeks review of the trial
court’s summary dismissal of his fourth post-conviction relief proceeding
pursuant to Rule 32, Ariz. R. Crim. P. We grant review, but we deny relief.
¶2 Following trial by jury in 1989, Washington was convicted of
four counts of armed robbery. The trial court determined that he had five
prior felony convictions, and sentenced him as a repetitive offender to four
consecutive 15.75-year prison terms. The convictions and sentences were
affirmed on direct appeal. State v. Washington, 1 CA-CR 90-1471 (App. July
28, 1992) (mem. decision).
¶3 In 1994, Washington filed his first notice of post-conviction
relief and his counsel filed a notice stating he had reviewed the record but
had found no claims to raise. Washington thereafter filed a pro se petition
and supplemental petition alleging error in the grand jury proceedings and
claims of juror misconduct and insufficient evidence. The trial court
summarily dismissed the proceedings based on a finding that the claims
were precluded.
¶4 In 1997, Washington commenced a second post-conviction
relief proceeding. After the trial court summarily dismissed the
proceedings, Washington filed a petition for review. This Court denied
review, based on a finding that Washington failed to present a colorable
claim for relief. State v. Washington, 1 CA-CR 98-0058-PR (App. June 23,
1999) (decision order).
¶5 In 2003, Washington commenced a third post-conviction
relief proceeding, filing a petition raising a claim of ineffective assistance of
counsel. The trial court summarily dismissed the petition on the grounds
that the claim was precluded. This Court denied review. State v.
Washington, 1 CA-CR 03-0995 PRPC, (App. Jan. 25, 2005) (decision order).
2
STATE v. WASHINGTON
Decision of the Court
¶6 On March 21, 2013, Washington filed a “writ of coram nobis”
seeking to have his convictions and sentences set aside, alleging claims of
fundamental error in his trial and convictions, ineffective assistance of trial
counsel, and prosecutorial misconduct. The trial court treated the filing as
a petition for post-conviction relief because it attacked the validity of
Washington’s convictions and sentences, see Ariz. R. Crim. P. 32.3, and
summarily denied relief, ruling that the petition was both successive and
untimely and that the claims were precluded. Washington filed a timely
petition for review. We review the summary dismissal of a petition for
post-conviction relief for abuse of discretion. State v. Bennett, 213 Ariz. 562,
566, ¶ 17, 146 P.3d 63, 67 (2006).
¶7 There was no error by the trial court in summarily dismissing
the petition. Rule 32.4 limits the claims that may be raised in an untimely
or successive petition to those made pursuant to Rule 32.1(d), (e), (f), (g), or
(h). Ariz. R. Crim. P. 32.4(a). None of the three claims raised by Washington
falls within these exceptions to preclusion. See Ariz. R. Crim. P 32.2(b). The
trial court therefore properly determined that the petition was subject to
summary dismissal.
¶8 There is no merit to Washington’s contention that the trial
court erred in considering his petition under the current version of Rule 32
rather than the pre-1992 version in existence at the time of his conviction in
1989. While the current version of Rule 32 was adopted after Washington’s
crimes, the “order promulgating the 1992 amendments made them
‘applicable to all post-conviction relief petitions filed on and after
September 30, 1992, except that the time limits of 90 and 30 days imposed
by Rule 32.4 shall be inapplicable to a defendant sentenced prior to
September 30, 1992, who is filing his first petition for post-conviction
relief.’“ Moreno v. Gonzalez, 192 Ariz. 131, 135, ¶ 22, 962 P.2d 205, 209 (1998)
[citations omitted]. As noted above, this is not Washington’s first petition
for post-conviction relief. Accordingly, his petition is both successive and
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STATE v. WASHINGTON
Decision of the Court
untimely, and he may only raise claims for relief “pursuant to Rule 32.1(d),
(e), (f), (g) or (h).” Ariz. R. Crim. P. 32.4(a).
¶9 For these reasons, although we grant the petition for review,
we deny relief.
:ama
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