State v. Volpe, 1 CA-CR 14-0847-PRPC

Anthony Volpe pled guilty in 2010 to first-degree burglary and orally moved to withdraw his plea at sentencing, arguing he was a lawful occupant of the apartment (the "lawful occupant" defense).
Volpe alleged trial counsel was ineffective for failing to investigate that defense; the superior court denied withdrawal and sentenced him to 15 years.
In 2011 Volpe filed a Rule 32 post-conviction petition of-right raising ineffective assistance, Brady-type nondisclosure, and newly discovered evidence; the court summarily dismissed and this Court denied relief on review.
In 2014 Volpe filed a second post-conviction petition asserting additional newly discovered evidence (four affidavits, rental application, receipt) supporting lawful-occupant, and claimed ineffective assistance by both trial counsel and his post-conviction counsel.
The superior court summarily dismissed the second petition; this Court granted review but denied relief, finding the proffered evidence was not newly discovered, was cumulative/hearsay/unsigned, and that related ineffective-assistance claims lacked colorable merit and were untimely.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Volpe presented newly discovered evidence entitling him to relief	Volpe: four affidavits plus documents newly support lawful-occupant defense and would have changed outcome	State: affidavits not newly discovered, partly unsworn/hearsay, documents were previously submitted and insufficient	Court: No — evidence not newly discovered, cumulative, hearsay/unsworn, and would not likely have altered result
Whether trial counsel was ineffective for not investigating lawful-occupant defense	Volpe: counsel failed to investigate evidence that would have established lawful occupancy	State: claims depend on the same deficient newly offered evidence and thus lack colorable merit	Court: No — ineffective-assistance claim fails because underlying new-evidence claims are not colorable
Whether Volpe's post-conviction counsel was ineffective for failing to raise the same claim	Volpe: PCR counsel failed to raise trial counsel ineffectiveness based on newly discovered evidence	State: claim is untimely and lacks merit because evidence was not new and claim repeats prior arguments	Court: No — untimely under Rule 32.4(a) and not colorable
Whether the second petition complied with Rule 32 timing	Volpe: filed second notice within his viewable timeframe (implicit)	State: Volpe filed notice ten months after issuance of mandate; Rule 32.4(a) requires strict compliance within 30 days	Court: No — filing was untimely; strict compliance required

State v. Bilke, 162 Ariz. 51, 781 P.2d 28 (1989) (standards for relief based on newly discovered evidence)
Canion v. Cole, 210 Ariz. 598, 115 P.3d 1261 (2005) (Rule 32 timing requires strict compliance)
State v. Pruett, 185 Ariz. 128, 912 P.2d 1357 (App. 1995) (defendant entitled to counsel in an of-right post-conviction proceeding)