State v. Rodriguez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DAVID ANTONIO RODRIGUEZ, Petitioner.

No. 1 CA-CR 21-0588 PRPC
FILED 7-26-2022

Petition for Review from the Superior Court in Yavapai County
No. V1300CR201080330
The Honorable Michael R. Bluff, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Yavapai County Attorney’s Office, Prescott
By Sheila Sullivan Polk
Counsel for Respondent

David Antonio Rodriguez, Kingman
Petitioner

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Peter B. Swann joined.
 STATE v. RODRIGUEZ
Decision of the Court

P A T O N, Judge:

¶1 Petitioner David Antonio Rodriguez petitions this court for
review from the dismissal of his petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated below, grant
review and deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 In July 2010, the State charged Rodriguez with multiple
counts of both sexual conduct with his girlfriend’s minor daughter, Y., and
possessing child pornography. Rodriguez pled guilty to two counts of
sexual conduct with a minor under 15 years old and five counts of attempt
to commit commercial sexual exploitation of a minor under 15 years old.
On January 31, 2012, the superior court sentenced Rodriguez to consecutive
15-year flat sentences followed by lifetime probation.

¶3 Rodriguez initiated timely post-conviction relief proceedings
on April 24, 2012. Rodriguez checked newly discovered evidence as a
ground for relief. See Ariz. R. Crim. P. 33.1(e). Appointed counsel found
no viable claims for relief and requested an extension to allow Rodriguez to
file a pro se petition, which was granted. Rodriguez failed to file a petition
and the State moved for the proceedings to be dismissed. On January 22,
2013, the court granted the dismissal.

¶4 Rodriguez filed a successive, untimely notice requesting post-
conviction relief over eight years later on January 11, 2021. Rodriguez filed
a pro-per petition for post-conviction relief on June 11, 2021, and was
appointed counsel who filed a supplement to the petition on the same date.
After finding that Rodriguez was represented by counsel, however, the
court struck his brief, and appointed counsel withdrew the supplement.
Appointed counsel then found no viable claims for relief and Rodriguez
filed an amended pro se petition (“amended petition”) shortly thereafter.
The State responded and the court denied the petition. This petition for
review followed.

DISCUSSION

¶5 Absent an abuse of discretion or error of law, this court will
not disturb the trial court’s ruling on a petition for post-conviction relief.
State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). The petitioner bears the
burden of establishing an abuse of discretion. State v. Poblete, 227 Ariz. 537,
538, ¶ 1 (App. 2011). Rodriguez has failed to show an abuse of discretion.

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 STATE v. RODRIGUEZ
Decision of the Court

¶6 On review, Rodriguez contends that the superior court did
not review the amended petition, but only struck the June 11th petition.
Thus, he contends, the court did not address his claim that perjury during
the grand jury proceedings constituted newly discovered evidence.
Contrary to Rodriguez’s claims, the superior court clearly identified that it
reviewed and denied the amended petition only. In a footnote, the court
also explained why it struck the June 11th petitions. Furthermore, the court
gave detailed reasons for denying Rodriguez’s perjury claim as newly
discovered evidence.

¶7 As for the merits of Rodriguez’s perjury argument which he
attempts to raise on review, the issue is precluded and waived. Although
claims of newly discovered evidence are not automatically precluded in a
successive or untimely proceeding, “the defendant must explain the
reasons for not raising the claim in a previous notice or petition, or for not
raising the claim in a timely manner.” Ariz. R. Crim. P. 33.2(b)(1).
Rodriguez fails to adequately explain why it took over seven years to obtain
his case file and begin the present proceedings. Rodriguez also fails to cite
to relevant authority or develop the argument in a meaningful way. See
State v. Stefanovich, 232 Ariz. 154, 158, ¶ 16 (App. 2013). Finally, by pleading
guilty, Rodriguez waived all non-jurisdictional defenses, including any and
all defenses, errors, and defects that occurred prior to the plea. See State v.
Quick, 177 Ariz. 314, 316 (App. 1993). Rodriguez fails to raise a colorable
claim.

CONCLUSION

¶8 We grant review and deny relief.

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

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