Opinion
No. 2 CA-CR 2014-0158-PR
08-12-2014
THE STATE OF ARIZONA, Respondent, v. CHESTER LEON AXSOM II, Petitioner.
COUNSEL Barbara LaWall, Pima County Attorney By Nicolette Kneup, Deputy County Attorney, Tucson Counsel for Respondent Chester L. Axsom II, Florence In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Pima County
No. CR20022939
The Honorable Paul E. Tang, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Barbara LaWall, Pima County Attorney
By Nicolette Kneup, Deputy County Attorney, Tucson
Counsel for Respondent
Chester L. Axsom II, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 Chester Axsom II has filed a petition for review pursuant to the trial court's order in which it concluded his post-conviction attorneys had been ineffective in failing to file such a petition in previous proceedings. Axsom raises various claims related to his second resentencing for sexual assault and attempted sexual assault. We accept review but deny relief.
¶2 Axsom pled guilty to sexual assault and attempted sexual assault and was sentenced to an aggravated, fourteen-year prison term for the first offense and a consecutive, substantially aggravated, 8.75-year prison term for the second. In post-conviction proceedings pursuant to Rule 32, Ariz. R. Crim. P., he successfully challenged those sentences based on the United States Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). Before resentencing, the trial court conducted a bench trial to determine the existence of a prior felony conviction the state had urged as an aggravating factor, finding Axsom had previous convictions for kidnapping, aggravated assault, and sexual assault. The court then imposed prison terms identical to those originally imposed.
¶3 Axsom again challenged his sentences in post-conviction proceedings, and we granted relief on review, concluding that his previous convictions were too remote in time to be used as an enumerated aggravating factor under former A.R.S. § 13-702(C)(11) and did not fall under the catchall provision in effect at the time, § 13-702(C)(18), because it required that all aggravating factors be found by a jury. State v. Axsom, No. 2 CA-CR 2008-0268-PR, ¶¶ 8, 11, 13 (memorandum decision filed Mar. 23, 2009). We therefore remanded the case for resentencing "in accordance with this decision and with the substantive law in effect when Axsom committed the offenses in 2002 and the procedural law applicable when he is resentenced." Id. ¶ 18.
See 2001 Ariz. Sess. Laws, ch. 51, § 1; 2003 Ariz. Sess. Laws, ch. 225, § 1.
¶4 Upon remand, a jury found the following aggravating factors as to Axsom's conviction of sexual assault: physical harm to the victim, the crime had been committed within months of Axsom's release from prison, his prior sexual assault conviction, and his lack of remorse. The jury found the same aggravating factors for Axsom's conviction of attempted sexual assault and additionally found Axsom had used, threatened to use, or possessed a deadly weapon while committing the offense. The trial court again imposed the same sentences.
¶5 Axsom, through appointed counsel Richard Parrish, sought review of his sentences by filing a notice of appeal. This court dismissed that notice pursuant to A.R.S. § 13-4033(B). Parrish then filed a petition for review on Axsom's behalf, which this court dismissed, noting there "was no ruling on a petition for postconviction relief" subject to review pursuant to Rule 32.9. Parrish filed a petition for review with our supreme court, which was denied in December 2010.
¶6 In April 2011, Axsom filed a notice of post-conviction relief citing Rule 32.1(f), claiming he had only received his file from Parrish in February. The trial court appointed attorney Thomas Higgins to represent Axsom. Through counsel, Axsom filed a petition for post-conviction relief. In that petition, although Axsom mentioned that Parrish had failed to properly seek review of his resentencing, he did not seek relief on that basis, instead claiming Parrish had been ineffective at resentencing. The trial court summarily dismissed the petition, and Axsom did not file a petition for review.
¶7 Nearly a year later, in May 2013, Axsom filed another notice of post-conviction relief, again citing Rule 32.1(f), claiming his previous counsel had failed to file a petition for review or inform Axsom that he had no plans to do so, therefore allowing Axsom to file a pro se petition. The trial court appointed counsel, who filed a petition for post-conviction relief, arguing that both Parrish and Higgins had been ineffective. He argued that Parrish had been ineffective in attempting to appeal Axsom's new sentences rather than timely file a petition for review pursuant to Rule 32.9(c). He also asserted Higgins had been ineffective in failing to file a petition for review or communicate with Axsom about his right to file a pro se petition. Counsel argued that Axsom should be permitted to file "a delayed petition for review in both of these matters." Counsel also requested that he be permitted to withdraw from the case to allow Axsom to file the petitions pro se because "counsel's view and that of . . . Axsom will likely conflict insofar as the issues . . . Axsom will likely want to raise in the actual Petition for Review." The state responded it "ha[d] no objection to [Axsom's] request," and trial court granted relief, stating Axsom "is granted the right to file a Delayed Petition for Review as to all matters related to his re-sentence entered in post conviction proceedings . . . , as well as the denial of his ineffective assistance claims." Axsom's pro se, delayed petition for review followed.
¶8 Before we reach the issues raised in Axsom's petition for review, we must first discuss the relief granted by the trial court. The parties and the court appeared to operate under the mistaken belief that Axsom should have filed a petition for review in this court immediately following his resentencing. But Rule 32.9(c) does not permit review in such circumstances; it permits review of the trial court's ruling on a petition for post-conviction relief, not the subsequent proceedings resulting from that ruling, such as a resentencing. See also Ariz. R. Crim. P. 32.1 (permitting post-conviction proceeding to review sentence imposed after guilty plea in "of-right proceeding"); Ariz. R. Crim. P. 32.4(a) (notice of post-conviction relief must be filed "within ninety days after the entry of judgment and sentence"); cf. State v. Cleere, 213 Ariz. 54, n.2, 138 P.3d 1181, 1184 n.2 (App. 2006) (noting that pleading defendant's post-conviction proceeding following resentencing is of-right proceeding). But the court did not make a ruling on a post-conviction petition for us to review until it denied Axsom's claims that Parrish had been ineffective at sentencing. Thus, the court's decision to allow Axsom to file a delayed petition for review "as to all matters related to his re-sentence" is essentially duplicative of its decision to allow Axsom to file a delayed petition for review of the claims raised by Higgins.
¶9 As a pleading defendant, Axsom was required to file a notice of post-conviction relief in the trial court within ninety days of his resentencing in order to seek review of his new sentences. See Ariz. R. Crim. P. 32.4(a). Because he did not do so, his only avenue for relief was to seek permission to file a delayed notice pursuant to Rule 32.1(f) by arguing that his "failure to file a notice of post-conviction relief of-right or notice of appeal within the prescribed time was without fault on [his] part." See Ariz. R. Crim. P. 32.4(a) (Rule 32.1(f) claim may be raised in untimely proceeding). Although Axsom cited Rule 32.1(f) in his April 2011 notice, Higgins did not raise that issue, instead claiming that Parrish had been ineffective at Axsom's resentencing. But the trial court implicitly granted relief pursuant to Rule 32.1(f) by addressing the merits of those claims, which otherwise could not have been raised in the untimely proceeding. See Ariz. R. Crim. P. 32.4(a); State v. Lopez, 234 Ariz. 513, ¶ 5, 323 P.3d 1164, 1165-66 (App. 2014). Thus, to the extent the parties and the court believed Axsom has been deprived of the opportunity to seek review of his sentences in post-conviction proceedings, they were mistaken.
¶10 As we have explained, our review is necessarily limited to the only ruling denying Axsom post-conviction relief—the trial court's ruling in June 2012, rejecting his claims of ineffective assistance of counsel at resentencing. However, Axsom does not argue on review that the court erred in rejecting those claims, and we therefore do not address them further. Although Axsom's petition for review claims the court erred in the resentencing, he has never raised these claims in the trial court, so we will not review them. See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980) (appellate court will not consider on review claims not raised below); see also Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review limited to "issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review").
Axsom appears to incorporate his claims raised in his final Rule 32 proceeding that Parrish and Higgins were ineffective in failing to timely file petitions for review. The trial court granted relief on those claims.
¶11 For the reasons stated, although review is granted, relief is denied.