State v. Cruz, 040320 AZAPP2, 2 CA-CR 2019-0169-PR

Docket Nº:2 CA-CR 2019-0169-PR
Opinion Judge:EPPICH, PRESIDING JUDGE
Party Name:The State of Arizona, Respondent, v. Juan Alberto Cruz, Petitioner.
Attorney:Kent P. Volkmer, Pinal County Attorney By Geraldine L. Roll, Deputy County Attorney, Florence Counsel for Respondent Juan Alberto Cruz, Florence In Propria Persona
Judge Panel:Presiding Judge Eppich authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.
Case Date:April 03, 2020
Court:Court of Appeals of Arizona
 
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The State of Arizona, Respondent,

v.

Juan Alberto Cruz, Petitioner.

No. 2 CA-CR 2019-0169-PR

Court of Appeals of Arizona, Second Division

April 3, 2020

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Petition for Review from the Superior Court in Pinal County No. S1100CR201400049 The Honorable Steven J. Fuller, Judge

Kent P. Volkmer, Pinal County Attorney By Geraldine L. Roll, Deputy County Attorney, Florence Counsel for Respondent

Juan Alberto Cruz, Florence In Propria Persona

Presiding Judge Eppich authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.

MEMORANDUM DECISION

EPPICH, PRESIDING JUDGE

¶1 Juan Cruz seeks review of the trial court's order dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P.[1] We will not disturb that order unless the court has abused its discretion. See State v. Martinez, 226 Ariz. 464, ¶ 6 (App. 2011). Cruz has not met his burden of establishing such abuse here.

¶2 After a jury trial, Cruz was convicted of aggravated assault and promoting prison contraband. The convictions were based on an incident in which Cruz, who was incarcerated at the time, used a hand-made key to unlock his handcuffs and then assaulted a correctional officer. During the struggle that followed, another officer found a prison-made "shank" - a pen tube with a sharpened metal point fashioned to serve as a weapon-on the floor near Cruz's leg. The trial court sentenced Cruz to concurrent prison terms, the longer of which was 15.75 years, to be served consecutively to the prison term he was already serving. This court affirmed his convictions and sentences on appeal. State v. Cruz, No. 2 CA-CR 2016-0128 (Ariz. App. May 3, 2017) (mem. decision).

¶3 Cruz filed a notice of post-conviction relief. Thereafter, appointed counsel filed a notice, stating she had reviewed the record but was unable to find any colorable claims to raise in a Rule 32 petition and asking the trial court to grant Cruz leave to file a pro se petition. Cruz's subsequently filed pro se petition raised claims of "fundamental error" concerning prosecutorial misconduct and ineffective assistance of counsel. The trial court summarily dismissed the petition, explaining the claims "are precluded as having been previously ruled upon or untimely filed or the Petition lacks sufficient basis in law and fact...

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