State v. Harden, 2 CA–CR 2011–0139–PR.

• Citation: 228 Ariz. 131,263 P.3d 680,618 Ariz. Adv. Rep. 6
• Decision Date: 30 September 2011
• Docket Number: No. 2 CA–CR 2011–0139–PR.,2 CA–CR 2011–0139–PR.
• Parties: The STATE of Arizona, Respondent,v.Robert Taylor HARDEN, Petitioner.
• Court: Court of Appeals of Arizona

228 Ariz. 131
263 P.3d 680
618 Ariz. Adv. Rep. 6

The STATE of Arizona, Respondent,
v.
Robert Taylor HARDEN, Petitioner.

No. 2 CA–CR 2011–0139–PR.

Court of Appeals of Arizona, Division 2, Department B.

Sept. 30, 2011.

[263 P.3d 680]

Robert T. Harden, Florence, In Propria Persona.OPINION ESPINOSA, Judge.

¶ 1 Robert Harden seeks review of the trial court's summary denial of his notice of post-conviction relief, filed pursuant to Rule 32, Ariz. R.Crim. P. After entering into a plea agreement, Harden was convicted in April 2010 of one count of child molestation

[263 P.3d 681]

and one count of “molestation of a child in the second degree, ... a preparatory ... crime,” both dangerous crimes against children. The court sentenced him to a minimum, ten-year prison term for the molestation count and imposed lifetime probation for the preparatory offense.

¶ 2 In March 2011, Harden filed his first, untimely, notice of post-conviction relief, in which he alleged he had “discovered a significant omission or error on his contract for ‘Uniform Conditions of Supervised Probation’ ” that “introduces a condition of uncertainty regarding the legal merits of the sentence.” On the notice form, Harden indicated his claims were grounded in Rule 32.1(e), which permits claims based on “newly discovered material facts,” and Rule 32.1(f), which excuses untimely filing of a notice of post-conviction relief of right if the failure to file timely was “without fault on the defendant's part.” Harden also included a request for the appointment of counsel.

¶ 3 The trial court summarily dismissed Harden's notice, citing Rule 32.2(b), which provides, in relevant part,

When a claim under Rules 32.1(d), (e), (f), (g) and (h) is to be raised in a successive or untimely post-conviction relief proceeding, the notice of post-conviction relief must set forth the substance of the specific exception and the reasons for not raising the claim in the previous petition or in a timely manner. If the specific exception and meritorious reasons do not appear substantiating the claim and indicating why the claim was not stated in the previous petition or in a timely manner, the notice shall be summarily dismissed.

The court appears to have found Harden's “discovery” of an ambiguity in his terms of probation insufficient to explain his delay in filing for post-conviction relief, noting that the record “reflects that he reviewed and signed that document on the day of sentencing.” We review the court's summary denial of post-conviction relief for an abuse of discretion, but we review de novo the court's interpretation of relevant rules. State v. Martinez, 226 Ariz. 464, ¶ 6, 250 P.3d 241, 243 (App.2011).Discussion

¶ 4 On review, Harden asserts the merits of his claim, disagrees with the trial court's findings, and seems to argue he should have been permitted to file a petition before the court considered summary dismissal of his claims. ¹ But Rule 32.2(b) clearly provides for summary dismissal based on an insufficient notice in an untimely or successive petition, and we see no abuse of discretion in the court's determination that Harden's reasons for filing his Rule 32 notice more than seven months past the deadline, as stated or implied in his notice, lacked merit.

¶ 5 Harden also argues the trial court “erred in its summary' dismissal of [his] notice' without benefit of counsel who would've provided the content required by the ... court.” Relying on Rule 32.4(c)(2), he maintains the court should have appointed counsel before considering whether his notice was subject to summary dismissal pursuant to Rule 32.2(b).

¶ 6 “In interpreting rules, we apply the same principles...