Opinion
No. 2 CA-CR 2017-0341-PR
05-11-2018
THE STATE OF ARIZONA, Respondent, v. STEPHEN LEE HENSEL, Petitioner.
Stephen L. Hensel, Douglas 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NOT FOR PUBLICATION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 Graham County
No. CR201500130
The Honorable D. Corey Sanders, Judge Pro Tempore
REVIEW DENIED
Stephen L. Hensel, Douglas
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:
¶1 Stephen Hensel petitions for review of the trial court's order summarily denying his untimely notice of post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. For the reasons that follow, we deny review.
We apply the current version of Rule 32 as doing so will neither "be infeasible [n]or work an injustice." Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017).
Factual and Procedural Background
¶2 Pursuant to a plea agreement, Hensel pled guilty to possession of drug paraphernalia and possession of a dangerous drug, and entered a plea of no contest to four counts of theft, two counts of theft of a means of transportation, and weapons misconduct. Consistent with a stipulation in his plea agreement, he was sentenced in November 2015 to consecutive prison terms totaling five years for the drug offenses, to be followed by concurrent terms of intensive probation for the other seven offenses, the longest of which are four years. Hensel was ordered to pay $3,000 in restitution to one victim, and pursuant to a separate stipulation, he was held jointly and severally responsible to pay $13,219.63 to another victim.
¶3 In May 2017, this court dismissed Hensel's petition for review in 2 CA-CR 2016-0421-PR, noting it appeared the trial court had "never ruled on petitioner's Special Action for Peremptory Writ of Mandamus Proceedings [Petition for Post-Conviction Relief]," and remanding for ruling on that pleading, "dated December 29, 2016." In a notice filed a few days after our May 2017 order, the court stated it had "reviewed the entire case file" and could not find "any pleading entitled Special Action for Peremptory Writ of Mandamus filed on December 29, 2016 or any other date," and thus could "take no action until a request for post-conviction relief [was] filed."
Although most of the date stamp on that pleading is not legible, it clearly bears a date of December 29, 2016.
This record does not contain any document showing the trial court ever ruled on any December 29, 2016 filing. Our mandate in 2 CA-CR 2016-0421-PR was issued in August 2017. State v. Hensel, No. 2 CA-CR 2016-0421-PR (Ariz. App. Aug. 3, 2017) (mandate).
¶4 In June 2017, Hensel filed the underlying notice of post-conviction relief challenging his sentences and the restitution imposed, claims apparently grounded in Rule 32.1(c). In July 2017, the trial court summarily denied his notice as untimely. In August 2017, Hensel filed a "Notice of Appeal" in 2 CA-CR 2016-0421-PR, referring to the court's July 2017 ruling. Shortly thereafter, the state requested a status hearing to address what "appears to be a lot of confusion over what has or has not been filed regarding Post-Conviction Relief as well as issues dealing with restitution." The court granted the state's request, and following a status hearing held in September 2017, which Hensel attended, the court ordered the "Clerk of the Graham County Court to transmit the case file including the Second Special Action Petition which was filed by . . . HENSEL, to Division Two of the Arizona Court of Appeals." Hensel then filed two pleadings on October 23, 2017: 1) a Notice of Appeal, to which he attached this court's October 11, 2017, order dismissing his special action in 2 CA-SA 2017-0075; and, 2) the petition for review now before us.
On his form notice of post-conviction relief, Hensel checked the box indicating he had not had a previous Rule 32 proceeding, but did not check either "Yes" or "No" in response to the question whether he wanted the trial court to appoint an attorney to represent him. He attached to his notice this court's May 2017 order dismissing his petition for review in 2 CA-CR 2016-0421-PR and the December 29, 2016, "Special Action for Peremptory Writ of Mandamus," in which he essentially had raised the same claims raised in his current notice.
On September 28, 2017, this court ordered Hensel to file a copy of the ruling he appeared to be challenging in a special action matter, 2 CA-SA 2017-0075, which we subsequently dismissed in October 2017. Hensel v. State, No. 2 CA-SA 2017-0075 (Ariz. App. Sept. 28, 2017) (order); Hensel v. State, No. 2 CA-SA 2017-0075 (Ariz. App. Oct. 11, 2017) (order).
Petition for Review
¶5 On review, Hensel challenges his sentences and the restitution imposed, and also asserts the trial court failed to rule on his December 29, 2016, pleading. He asks that we either rule in that matter or "submit this action to the Arizona Supreme Court," and requests that we remand for resentencing. However, insofar as Hensel challenges the trial court's denial of his June 2017 notice of post-conviction relief, this petition for review is untimely. See Ariz. R. Crim. P. 32.9(c)(1)(A). And, if we construe Hensel's petition as challenging the court's September 2017 order, that order is not subject to review under Rule 32.9(c) because it does not constitute a "final decision on a petition [for post-conviction relief] or a motion for rehearing." We are thus compelled to deny review.
To the extent Hensel's petition for review could be construed as seeking special action relief from the trial court's September 2017 order, we decline to exercise our special action jurisdiction. See Jordan v. McClennen, 232 Ariz. 572, ¶ 5 (App. 2013); see also Ariz. R. P. Spec. Act. 1(a). --------
Disposition
¶6 Review denied.