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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LAMAR VALDEN SIMMONS, Petitioner.

No. 1 CA-CR 13-0677 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR 1987-001119

The Honorable Karen A. Mullins, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Diane Meloche

Counsel for Respondent

Lamar Valden Simmons, Florence

Petitioner Pro Se

MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which 

Presiding Judge Margaret H. Downie and Judge Kenton D. Jones joined.
STATE v. SIMMONS

Decision of the Court

2

T H O M P S O N, Judge:

¶1 Lamar Valden Simmons petitions for review of the dismissal 

of his fifth post-conviction relief proceeding commenced pursuant to Rule 

32, Ariz. R. Crim. P. We have considered his petition and, for the reasons 

stated, grant review but deny relief.

¶2 In 1987, Simmons plead guilty, pursuant to a plea agreement, 

to two counts of first degree burglary, two counts of sexual assault, and one 

count of aggravated assault. The trial court sentenced Simmons to 

concurrent and consecutive prison terms totaling forty-two years. 

¶3 The trial court has previously dismissed post-conviction relief 

proceedings commenced by Simmons in 1993, 2009, 2011, and 2013. In his 

most recent notice of post-conviction relief, Simmons alleged a claim of 

ineffective assistance of counsel and implicitly asserted that his claim, 

although untimely, was permissible because the Supreme Court’s decisions 

in Missouri v. Frye, 132 S. Ct. 1399 (2012), and Martinez v. Ryan, 132 S. Ct. 

1309 (2012), constitute significant changes in the law. Noting that the notice

was both successive and untimely and finding that the decisions cited by 

Simmons did not constitute significant changes in the law that would entitle 

him to relief, the trial court summarily dismissed the notice. This petition 

for review followed. 

¶4 We review the summary dismissal of a post-conviction relief 

proceeding for abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17, 

146 P.3d 63, 67 (2006). We may uphold the trial court’s ruling on any basis 

supported by the record. State v. Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 

809 (1987).

¶5 Simmons argues that the trial court erred by dismissing his

notice before he filed his petition for post-conviction relief. The trial court 

is authorized to summarily dismiss an untimely or successive notice of 

post-conviction relief when the notice fails to raise a claim under Rules 

32.1(d), (e), (f), (g), and (h). Ariz. R. Crim. P. 32.2(b). There was no error

by the trial court in dismissing the notice filed by Simmons because a claim 

of ineffective assistance of counsel does not fall within any of the exceptions 

to dismissal under Rule 32.2(b) and Simmons failed to raise a claim of 

significant change in the law that would entitle him to relief. See Ariz. R. 

Crim. P. 32.1(g), 32.4(a) (claim of significant change in law can be raised in 

untimely notice for post-conviction relief); State v. Petty, 225 Ariz. 369, 373, 

¶ 11, 238 P.3d 637, 641 (App. 2010) (claim of ineffective assistance of 

counsel, standing alone, grounded in Rule 32.1(a)). 
STATE v. SIMMONS

Decision of the Court

3

¶6 In Frye, the Supreme Court held a defendant has a right to 

effective assistance of counsel during the plea bargain process. 132 S. Ct. at 

1407–1408. Frye, however, does not constitute a significant change in the 

law as applied in Arizona. This state has long recognized that the right to 

effective assistance of counsel extends to the plea bargain process. State v. 

Donald, 198 Ariz. 406, 413, ¶ 14, 10 P.3d 1193, 1200 (App. 2000). Although 

Donald was decided after Simmons pled guilty, Simmons could have raised 

any issue of ineffective assistance of counsel regarding his plea bargain or 

sentencing years ago. Any claim Simmons could have raised in a previous 

post-conviction relief proceeding is precluded. See Ariz. R. Crim. P. 32.2(a); 

see also Ariz. R. Crim. P. 32.2(c) (“[A]ny court on review of the record may 

determine and hold that an issue is precluded. . . .”). 

¶7 In Martinez, the Court held:

Where, under state law, claims of ineffective 

assistance of trial counsel must be raised in an 

initial-review collateral proceeding, a 

procedural default will not bar a federal habeas 

court from hearing a substantial claim of 

ineffective assistance at trial if, in the initialreview collateral proceeding, there was no 

counsel or counsel in that proceeding was 

ineffective.

132 S. Ct. at 1320. This simply means Simmons can seek habeas corpus 

relief in federal court based on ineffective assistance of trial counsel if he 

can first show either he had no counsel in his first post-conviction relief 

proceeding or counsel in his first post-conviction relief proceeding was 

ineffective. Martinez does not require a state court to consider all untimely 

claims of ineffective assistance of counsel raised in post-conviction 

proceedings. State v. Escareno-Meraz, 232 Ariz. 586, 587, ¶¶ 5-6, 307 P.3d 

1013, 1014 (App. 2013).
STATE v. SIMMONS

Decision of the Court

4

¶8 Accordingly, although we grant review, we deny relief.