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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BRIAN ADRIAN ORTIZ, 

Petitioner.

No. 1 CA-CR 19-0355 PRPC

Appeal from the Superior Court in Maricopa County

No. CR2013-453402-001

The Honorable Jo Lynn Gentry, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Brian Adrian Ortiz, Buckeye

Petitioner

Maricopa County Attorney’s Office, Phoenix

By Andrea L. Kever

Counsel for Respondent

FILED 3-24-2020
STATE v. ORTIZ

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in 

which Judge Randall M. Howe and Judge Michael J. Brown joined.

T H U M M A, Judge:

¶1 Petitioner Brian Adrian Ortiz seeks review of the superior 

court’s order denying his petition for post-conviction relief, filed pursuant 

to Arizona Rule of Criminal Procedure 32 (2020).

1 This is petitioner’s second 

petition.

¶2 In July 2014, a jury found Ortiz guilty of aggravated assault, 

a Class 4 felony; resisting arrest, a Class 6 felony; and criminal trespass, a 

Class 6 felony, all committed in November 2013. The jury found 

aggravating circumstances and the court found Ortiz had four historical 

prior felony convictions. He was sentenced to concurrent prison terms, the 

longest of which was 12 years, with appropriate presentence incarceration 

credit. His convictions and sentences were affirmed on direct appeal. State 

v. Ortiz, 1 CA-CR 15-0624 (Ariz. App. Dec. 6, 2016) (mem. decision). 

¶3 In February 2017, Ortiz filed a notice of post-conviction relief,

his court-appointed counsel then filed a notice that no claims for relief could 

be identified. Ortiz filed a pro se petition, which the superior court denied, 

and this court dismissed his petition for review as untimely.

¶4 In December 2018, Ortiz filed this second petition for postconviction relief. The superior court summarily dismissed the claim as 

successive and found Ortiz failed to state a claim for relief. Ortiz timely 

sought review by this court. 

¶5 Ortiz alleges his trial counsel (including counsel who pressed 

a motion for new trial), his appellate counsel and his Rule 32 counsel were 

ineffective and the superior court abused its discretion during trial.

1 Rule 32, effective during the superior court’s hearings, was amended

pursuant to Arizona Supreme Court Order No. R-19-0012 effective January 

1, 2020. Because there were no substantive changes, this court cites the 

current version. 
STATE v. ORTIZ

Decision of the Court

3

¶6 As for Ortiz’s claims of ineffective assistance by his trial and 

his appellate counsel, as well as his claims the superior court abused its 

discretion during trial, those claims are precluded. See Ariz. R. Crim. P. 

32.2(a)(2). Those claims were resolved on the merits on Ortiz’s direct appeal 

and prior petition. As to Ortiz’ claims that his Rule 32 counsel was 

ineffective, because he was found guilty at trial (meaning he is a nonpleading defendant), he has “no constitutional right to counsel in postconviction proceedings; thus, despite the existence of state rules providing 

counsel, a claim that Rule 32 counsel was ineffective is not a cognizable 

ground for relief in a subsequent Rule 32 proceeding.” State v. EscarenoMeraz, 232 Ariz. 586, 587 ¶ 4 (App. 2013) (citing cases). 

¶7 Ortiz also raises a newly discovered evidence claim.

Although this claim is not subject to preclusion under Rule 32.2(a)(3), Ortiz 

needed to “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. 32.2(b). Ortiz provided this court with an affidavit from the officer Ortiz 

assaulted. The officer signed the affidavit in September 2015, more than a 

year before Ortiz filed his first petition for post-conviction relief. Ortiz has 

provided no reason for why he did not rely on this evidence in his first 

petition for post-conviction relief. See id. Accordingly, his newly discovered 

evidence claim fails.

¶8 For these reasons, this court grants review but denies relief.