Opinion
2 CA-CR 2023-0210-PR
03-12-2024
The State of Arizona, Respondent, v. Stephen Harmon, Petitioner.
Laura Conover, Pima County Attorney By James Rappaport, Deputy County Attorney, Tucson Counsel for Respondent Stephen Harmon, Wasilla, Alaska In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County Nos. CR04385001 and CR04656001 The Honorable Brenden J. Griffin, Judge
Laura Conover, Pima County Attorney By James Rappaport, Deputy County Attorney, Tucson Counsel for Respondent
Stephen Harmon, Wasilla, Alaska In Propria Persona
Presiding Judge Brearcliffe authored the decision of the Court, in which Judge Eckerstrom and Judge Kelly concurred.
MEMORANDUM DECISION
BREARCLIFFE, PRESIDING JUDGE
¶1 Stephen Harmon seeks review of the trial court's order summarily dismissing his "Motion for Relief from a Judgment &Order," which the court treated as a notice of post-conviction relief filed pursuant to Rules 32 and 33, Ariz. R. Crim. P. We will not disturb this ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Harmon has not met his burden of establishing such abuse.
¶2 After a jury trial, Harmon was convicted of kidnapping and sexual abuse. State v. Harmon, 132 Ariz. 54, 55 (1982). He also pled no contest to other counts of kidnapping, burglary, and attempted sexual assault. Id. The trial court imposed concurrent prison terms, the longest of which were 10.5 years. Id. We affirmed his convictions and sentences on appeal. Id.
¶3 More than forty years later, in October 2023, Harmon filed a "Motion for Relief from a Judgment &Order" and an accompanying memorandum. He argued that because various documents, including his indictment, did not include a court seal in violation of 28 U.S.C. § 1691, the trial court never had jurisdiction over him, rendering his convictions void. The court, treating Harmon's filings as "Untimely First Notices of Post-Conviction Relief," summarily dismissed the proceeding. This petition for review followed.
¶4 In his petition for review, Harmon complains that the trial court erred by treating his filing as a notice of post-conviction relief rather than a motion under Rule 60, Ariz. R. Civ. P. But Rule 33.3(b), Ariz. R. Crim. P., required the court to treat Harmon's filings as a request for post-conviction relief because they "challenge[d] the validity of [his] plea or . . . sentence." Thus, the court properly characterized them as raising a claim under Rule 33.1(b) that the court lacked "subject matter jurisdiction to render a judgment or to impose a sentence."
Harmon correctly points out that he listed only the case number for the case in which he had pled no contest, and not the case in which he went to trial. We thus address his argument only with respect to those convictions for which he pled no contest. And, insofar as Harmon argues the trial court erred by deeming his post-conviction notice untimely, he is correct. The current time limits did not apply to what appears to have been Harmon's first attempt to obtain post-conviction relief. Before the 1992 amendment to Rule 32, former Rule 32.4(a) provided that a petition for post-conviction relief, whether from conviction after a jury trial or a plea, "may be filed at any time after entry of judgment and sentence." 170 Ariz. LXVIII (1992). The "order promulgating the 1992 amendments made them 'applicable to all post-conviction relief petitions filed on and after September 30, 1992, except that the time limits of 90 and 30 days imposed by Rule 32.4 shall be inapplicable to a defendant sentenced prior to September 30, 1992, who is filing his first petition for post-conviction relief.'" Moreno v. Gonzalez, 192 Ariz. 131, ¶ 22 (1998) (quoting 171 Ariz. XLIV (1992)).
¶5 However characterized, Harmon's underlying argument fails on its merits. Section 1691 states that "[a]ll writs and process issuing from a court of the United States shall be under the seal of the court and signed by the clerk thereof." An Arizona state court is not a "court of the United States," 28 U.S.C. § 451, and § 1691 thus does not apply. Harmon has identified no defect in the trial court's jurisdiction.
¶6 We grant review but deny relief.