Opinion
No. 2 CA-CR 2017-0405-PR
05-25-2018
THE STATE OF ARIZONA, Respondent, v. LELAND CLARK, Petitioner.
COUNSEL Kent P. Volkmer, Pinal County Attorney By Geraldine L. Roll, Deputy County Attorney, Florence Counsel for Respondent Leland Clark, 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Pinal County
No. S1100CR201600086
The Honorable Jason R. Holmberg, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Kent P. Volkmer, Pinal County Attorney
By Geraldine L. Roll, Deputy County Attorney, Florence
Counsel for Respondent Leland Clark, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 Leland Clark seeks review of the trial court's order denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Clark has not shown such abuse here.
¶2 In CR201600086, Clark pled guilty to theft of a credit card. The trial court sentenced him to a 1.5-year prison term, ordering that term to be served concurrently with the term imposed in another cause number, CR201503807, and consecutive to terms imposed in two other cause numbers—CR201503549 and a cause number in Maricopa County, CR151741001. The court awarded no presentence incarceration credit.
¶3 Clark filed a timely pro se notice of and petition for post-conviction relief, arguing he was entitled to presentence incarceration credit of 117 days. The trial court appointed counsel, who filed a notice stating she had reviewed the record but had found "no claims that could be raised under Rule 32." Clark then filed a pro se petition, again asserting he was entitled to 117 days' presentence incarceration credit. The court denied relief, concluding "there is no error in the time credit calculation." Clark did not timely seek review of that ruling pursuant to Rule 32.9, instead filing seven months later a notice of and petition for post-conviction relief, this time asserting he is entitled to 105 days of presentence incarceration credit. The court summarily denied relief, and this petition for review followed.
¶4 On review, Clark repeats his claim that he is entitled to 105 days' presentence incarceration credit. We need not address this argument, however, because it cannot be raised in an untimely, successive petition for post-conviction relief like this one. A claim that a sentence is improper must be raised pursuant to Rule 32(a) or (c) and can only be raised in a timely proceeding. Ariz. R Crim. P. 32.4(a)(2)(C), (D). The time limits provided in Rule 32.4 are jurisdictional. A.R.S. § 13-4234(G); State v. Lopez, 234 Ariz. 513, ¶ 8 (App. 2014). Clark had not identified any claim that may be raised in an untimely proceeding.
Likewise, we do not address the state's contention that, although Clark was in custody, it was for an offense charged in Maricopa County cause number CR2015001741. --------
¶5 We grant review but deny relief.