Opinion
2 CA-CR 2023-0212-PR
02-13-2024
The State of Arizona, Respondent, v. Carl Dwight Davis, Petitioner.
Carl Dwight 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. CR2005127207001DT The Honorable Margaret B. LaBianca, Judge
Carl Dwight Davis, Florence In Propria Persona
Judge Sklar authored the decision of the Court, in which Vice Chief Judge Staring and Judge O'Neil concurred.
MEMORANDUM DECISION
SKLAR, Judge
¶1 Petitioner Carl Davis seeks review of the trial court's ruling summarily dismissing his successive petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Martinez, 226 Ariz. 464, ¶ 6 (App. 2011). Davis has not met his burden of establishing such abuse here.
¶2 After a bench trial, Davis was convicted of six counts of child molestation and one count of sexual abuse, all dangerous crimes against children. The trial court sentenced him to concurrent, presumptive prison terms of twenty-eight years on the molestation counts, to be followed by lifetime probation for the abuse count. We affirmed his convictions, sentences, and term of probation on appeal. State v. Davis, 1 CA-CR 06-0448 (Ariz. App. Dec. 20, 2007) (mem. decision). Davis has previously sought and been denied post-conviction relief at least six times.
¶3 Davis filed the current notice of and petition for post-conviction relief in December 2022. He asserted a claim pursuant to Rule 32.1(c), arguing that the sentence imposed is not authorized by law. He reasoned that A.R.S. §§ 13-604.01, 13-702, and 13-702.01 were renumbered, amended, or repealed after his conviction and were, therefore, "inapplicable" to his case. Even if those statutes were applicable, however, Davis argued that the "the presumptive term, with no alleged priors, is only seventeen years," suggesting he should have received that sentence for his child molestation convictions under A.R.S. § 13-1410. Along with his petition, Davis filed a "Reason for Untimely Filing Pursuant to Rule 32.1(f)." He asserted that his petition was untimely because he had filed numerous other pleadings "to gain the appropriate relief from his eighteen year incarceration," but the trial court had yet to rule on all of his motions.
¶4 In July 2023, the trial court summarily dismissed Davis's petition. As to Davis's claim that the failure to file a timely petition was not his fault, the court noted that it had "denied sentence reduction relief in an order filed on January 17, 2023." Citing Rule 32.4(b)(3)(D), the court further determined that Davis had failed to provide any authority for excusing his untimeliness in this successive proceeding. As to Davis's Rule 32.1(c) claim, the court pointed out that it had previously rejected in his last Rule 32 proceeding his arguments concerning the repeal of § 13-702.01 and the amendment of § 13-604.01. The court further explained that § 13-702, as amended, was not retroactive and "the applicable sentencing provisions are the laws that existed at the time of the offenses." The court also rejected his claim that he was entitled to a seventeen-year sentence, explaining that Davis had a predicate felony-a conviction for attempted child molestation-and that, under the applicable statutes, "the presumptive sentence for child molestation when a Defendant has a predicate felony was 28 years." This petition for review followed.
In February 2023, Davis requested a stay of this Rule 32 proceeding until the Arizona Supreme Court reviewed a separate petition. The trial court granted that request. Davis filed a motion to reinstate this proceeding in June 2023.
The trial court granted Davis an extension of time in which to file his petition for review, setting the due date for September 30, 2023. However, Davis did not file his petition for review until October 10, 2023. Because the timely filing of a petition for review is not jurisdictional, State v. Pope, 130 Ariz. 253, 255 (1981), we nevertheless address Davis's arguments.
¶5 On review, Davis reasserts his Rule 32.1(c) claim. He seems to suggest the trial court erred in rejecting his claim that he was entitled to a seventeen-year prison sentence because his 1985 conviction for attempted child molestation was the result of a plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). He reasons that because "there has never been an admission of guilt," that conviction could not be used as a predicate felony. But he cites no authority-and we are aware of none-supporting his position. See State v. Zunino, 133 Ariz. 117, 118 (App. 1982) (Alford plea "is in effect a guilty plea").
Davis also seems to challenge the trial court's determination that he had failed to provide adequate support for his untimeliness. But he does not offer meaningful argument on this point. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (claim waived on review because defendant cites no relevant authority and does not develop argument in meaningful way). In any event, the court addressed the substance of his petition-his Rule 32.1(c) claim-as we do here.
¶6 "A basic principle of criminal law requires that an offender be sentenced under the laws in effect at the time he committed the offense for which he is being sentenced." State v. Newton, 200 Ariz. 1, ¶ 3 (2001); see also A.R.S. § 1-246 (despite subsequent statutory amendment, "offender shall be punished under the law in force when the offense was committed"). At the time Davis committed his offenses, § 13-1410 provided that "[m]olestation of a child is a class 2 felony that is punishable pursuant to section 13-604.01." 1993 Ariz. Sess. Laws, ch. 255, § 29. Section 13-604.01(D) stated:
As the trial court pointed out, Davis previously raised a post-conviction challenge based on §§ 13-604.01 and 13-702.01. See Ariz. R. Crim. P. 32.2(a)(2). But that argument was apparently raised as a constitutional challenge under Rule 32.1(a).
Except as otherwise provided in this section, a person who is at least eighteen years of age or who has been tried as an adult and who stands convicted of a dangerous crime against children in the first degree involving . . . molestation of a child . . . shall be sentenced to a presumptive term of imprisonment for seventeen years. If the convicted person has been previously convicted of one predicate felony the person shall be sentenced to a presumptive term of imprisonment for twenty-eight years.2001 Ariz. Sess. Laws, ch. 334, § 7; 2005 Ariz. Sess. Laws, ch. 282, § 1. A predicate felony includes any felony involving a sexual offense. 2001 Ariz. Sess. Laws, ch. 334, § 7; 2005 Ariz. Sess. Laws, ch. 282, § 1. The statutory scheme thus allows for a twenty-eight-year sentence when the defendant has been convicted of any of the enumerated felonies-it is not limited to convictions for which the defendant has admitted guilt.
¶7 Davis was previously convicted of attempted child molestation, which is a sexual offense. See § 13-1410(A); see also A.R.S. § 13-1420(C)(5). He was therefore subject to the enhanced, presumptive twenty-eight-year prison term under § 13-1604.01, which is what the trial court imposed. The court therefore did not err by summarily dismissing his petition. See Martinez, 226 Ariz. 464, ¶ 6.
Davis also challenges his inability to reply to the state's response to his motion requesting discretionary sentence reduction. The trial court denied that motion in January 2023, but it is not currently before us as part of this post-conviction proceeding. We therefore do not address it. See Ariz. R. Crim. P. 32.16(a)(1) (aggrieved party may petition for review of trial court's final decision on Rule 32 petition motion for rehearing or dismissal of Rule 32 notice).
¶8 Accordingly, we grant review but deny relief.