Opinion
2 CA-CR 2023-0017-PR
02-23-2023
The State of Arizona, Respondent, v. Morris Earl Davis, Petitioner.
Morris E. Davis, Florence In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR2001018879 The Honorable Kathleen Mead, Judge
Morris E. Davis, Florence In Propria Persona
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vásquez and Judge Gard concurred.
MEMORANDUM DECISION
EPPICH, Presiding Judge:
¶1 Morris Davis seeks review of the trial court's order summarily dismissing his successive notice of and petition for post-conviction relief filed pursuant to Rule 33, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Davis has not met his burden of establishing such abuse here.
¶2 Davis pled guilty to sexual conduct with a minor and two counts of attempted sexual conduct with a minor. The trial court sentenced him to an aggravated twenty-seven-year prison term for sexual conduct, to be followed by an aggravated fifteen-year prison term for one of the attempt convictions. The court suspended the imposition of sentence for the remaining attempt conviction, and imposed a ninety-nine-year probation term. Davis timely sought post-conviction relief, but the court later dismissed that proceeding at Davis's request.
¶3 More than nineteen years later, in July 2022, Davis filed a notice of and petition for post-conviction relief asserting his aggravated sentences were unlawful because the trial court did not make a "specific finding" of aggravating factors and, in any event, he was entitled to a jury finding of aggravating factors. He further asserted that trial counsel had been ineffective in failing to provide him with discovery and to inform him he could receive aggravated, consecutive sentences and that his post-conviction counsel was ineffective in "fail[ing] to even contact [him] to discuss his case." Davis included with his filings an affidavit in which he asserted he had not discovered "the basis of this claim" until June 2022 because, before 2020, he had been provided "no means . . . to research and obtain caselaw" and COVID-19 restrictions had limited his access to legal research materials since 2020. Thus, he concluded, he is "not to blame" for his failure to timely seek relief. The court summarily dismissed the proceeding. This petition for review followed.
¶4 On review, Davis contends the trial court erred in finding his claims could not be raised in an untimely proceeding, citing Rules 33.1(f) and 33.4(b)(3)(D). These rules do not afford Davis relief. Rule 33.1(f) allows a defendant to pursue an untimely claim upon showing "the failure to timely file a notice of post-conviction relief was not the defendant's fault." Similarly, Rule 33.4(b)(3)(D) allows a defendant to raise constitutional claims in an untimely proceeding when "the defendant adequately explains why the failure to timely file a notice was not the defendant's fault."
¶5 But Davis timely sought post-conviction relief in 2003 and chose to abandon that proceeding. Although Davis suggests that his post-conviction counsel moved to dismiss that proceeding without his permission, the record shows otherwise. Attached to the motion to dismiss was a statement signed by Davis avowing he "no longer wish[ed] to contest the judgment of guilt or sentence entered against [him] in this case" and acknowledging he would not be permitted to again seek post-conviction relief "unless there is new evidence," "a law has changed," or he is "being held in custody after [his] sentence has expired."
Thus, even were it timely, his claim that counsel was ineffective in dismissing his proceeding without consulting with him necessarily fails. To state a colorable claim, a defendant must do more than contradict what the record plainly shows. See State v. Jenkins, 193 Ariz. 115, ¶ 15 (App. 1998).
¶6 A defendant is without fault in failing to file a timely notice when the defendant "was unaware of his right to petition for post-conviction relief or of the time within which a notice of post-conviction relief must be filed or that he intended to challenge the court's decision but his attorney or someone else interfered with his timely filing of a notice." State v. Poblete, 227 Ariz. 537, ¶ 7 (App. 2011). Rules 33.1(f) and 33.4(b)(3)(D) do not allow a defendant to raise a recently discovered constitutional claim if the defendant had the opportunity to timely seek post-conviction relief and failed to do so. See Poblete, 227 Ariz. 537, ¶ 7.
¶7 Davis asserted below that his sentencing claims were brought pursuant to Rule 33.1(c), which allows for relief if "the sentence as imposed is not authorized by law or by the plea agreement." Claims under Rule 33.1(c) are not subject to a specific timeliness requirement and may be raised "within a reasonable time after discovering the basis for the claim." Ariz. R. Crim. P. 33.4(b)(3)(B). However, a trial court may nonetheless summarily dismiss a notice raising such a claim unless the defendant "provide[s] sufficient reasons why the defendant did not raise the claim in a previous notice or petition, or in a timely manner." Ariz. R. Crim. P. 33.2(b)(1).
¶8 Davis has not established the trial court erred in concluding he did not provide a sufficient explanation as required by Rule 33.2(b)(1). The cases at the heart of his sentencing claim-Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004)-were decided long ago. As we have noted, Davis voluntarily abandoned his first proceeding. Additionally, beyond his bare assertion that the prison library was insufficient, he has not explained the nineteen-year delay in bringing this claim. Indeed, even assuming he had no access to legal materials at the prison library, as he claims, his own affidavit reveals that he was able to obtain research materials by mail from "friends and family members."
We note, however, that the trial court was incorrect that Davis's sentences were final when Apprendi was decided.
¶9 We grant review but deny relief.