Opinion
No. 2 CA-CR 2014-0336-PR
12-29-2014
THE STATE OF ARIZONA, Respondent, v. JEFFREY S. DAVIS, Petitioner.
Jeffrey S. Davis, 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NOT FOR PUBLICATION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 Greenlee County
No. CR201000042
The Honorable Donna J. Grimsley, Judge
DISMISSED
Jeffrey S. Davis, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 Jeffrey Davis petitions for review of the trial court's denial of his May 2014 motions to compel the Greenlee County Attorney and the Greenlee County Public Defender to disclose all evidence related to his case and for preparation of his preliminary hearing transcript. We conclude we lack jurisdiction to consider his petition and, therefore, dismiss it.
¶2 In December 2010, Davis pleaded no contest to charges of sexual conduct with a minor and attempted molestation of a child, both dangerous crimes against children. In February 2011, the trial court sentenced him to a presumptive, twenty-year term of imprisonment, to be followed by lifetime probation.
¶3 In September 2012, Davis filed an untimely, pro se notice of post-conviction relief in which he alleged, as his sole claim for relief, that his failure to file a timely notice was without fault on his part. See Ariz. R. Crim. P. 32.1(f). Consistent with this claim, appointed counsel filed a "Motion for Delayed Rule 32 and Notice of Reasons for Untimely Submission of Rule 32."
On his form notice of post-conviction relief, Davis had also checked "yes" in response to the question, "Is the defendant raising a claim of ineffective assistance of counsel?" But when the form prompted Davis to "[s]tate the facts that support" his claims, his only allegations of deficient performance by counsel involved counsel's omitting to file a timely notice of post-conviction relief on his behalf. Moreover, absent a grant of relief pursuant to Rule 32.1(f), any claim of ineffective assistance of trial counsel is barred. See Ariz. R. Crim. P. 32.4(a) ("Any notice not timely filed may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h)."); Osterkamp v. Browning, 226 Ariz. 485, n.1, 250 P.3d 551, 554 n.1 (App. 2011) (claim of ineffective assistance of counsel cognizable under Rule 32.1(a)).
¶4 After an evidentiary hearing in February 2013, the trial court denied Davis's claim, finding he had not "met his burden to show that the filing of the Rule 32 Petition late was without his own fault." Counsel filed a motion to withdraw, and the court informed Davis of his deadline for filing a pro se petition for review in this court. On review, this court also denied relief, finding the trial court had not abused its discretion in denying the claim—which Davis had filed more than a year past the deadline provided in Rule 32.4—and noting the court's resolution of conflicting testimony. State v. Davis, No. 2 CA-CR 2013-0131-PR, ¶¶ 4, 7-8 (memorandum decision filed July 31, 2013).
¶5 In May 2014, Davis filed motions to compel the prosecutor and his trial attorney to "turn over ALL evidence" related to his case and for preparation of his preliminary hearing transcript. He asserted these materials were required in order "to effectively present the issues within his petition." The trial court denied the motions and subsequently denied Davis's "Motion for Rehearing" on that ruling. This petition for review followed.
¶6 Pursuant to Rule 32.9(c), a party may petition this court for review "[w]ithin thirty days after the final decision of the trial court" in a Rule 32 proceeding. We conclude we lack jurisdiction to consider this petition because the trial court's ruling on Davis's motions is not a "final decision" that resolves claims asserted in a Rule 32 proceeding. See State v. Aguilar, 170 Ariz. 292, 294, 823 P.2d 1300, 1302 (App. 1991) (appellate court must determine existence of subject matter jurisdiction for review); cf. Am. Family Mut. Ins. Co. v. Grant, 222 Ariz. 507, ¶ 10, 217 P.3d 1212, 1216 (App. 2009) (discovery order not immediately appealable).
¶7 Indeed, based on the record before us, no Rule 32 proceeding is pending in this case. It appears the only Rule 32 proceeding Davis had initiated arose from the notice he filed in September 2012. As addressed above, the trial court's final decision in that proceeding was rendered in February 2013, when it denied Davis's claim. See supra ¶ 4. Davis petitioned for our review of that final decision and, after review, we denied relief. See id. That proceeding is concluded.
¶8 Although we may, in our discretion and in appropriate circumstances, review an improvidently filed petition for review by construing it as a petition for special action relief, see Aguilar, 170 Ariz. at 295-96, 823 P.2d at 1303-04, we decline to do so here. As our supreme court has made clear, "Before [a Rule 32 petitioner] may be permitted to show good cause to compel disclosure" of materials related to his claims "he must file a [post-conviction relief] petition to provide context for his request." Canion v. Cole, 210 Ariz. 598, ¶ 10, 115 P.3d 1261, 1263 (2005). Davis has not filed such a petition, nor has he filed a notice of post-conviction relief to initiate new Rule 32 proceedings.
¶9 We therefore dismiss the petition for review.