Opinion
No. 2 CA-CR 2017-0350-PR
04-25-2018
THE STATE OF ARIZONA, Respondent, v. FRANKLIN ERIC ORVIS, Petitioner.
COUNSEL Law Office of Daniel DeRienzo P.L.L.C., Prescott Valley By Daniel J. DeRienzo Counsel for Petitioner
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NOT FOR PUBLICATION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 Cochise County
No. CR201600015
The Honorable Wallace R. Hoggatt, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Law Office of Daniel DeRienzo P.L.L.C., Prescott Valley
By Daniel J. DeRienzo
Counsel for Petitioner
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred. BREARCLIFFE, Judge:
¶1 Franklin Orvis seeks review of the trial court's order denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., in which he sought clarification of the trial court's denial of his request for the return of property. Although we accept review, because we agree with the trial court that Orvis's claim is not cognizable under Rule 32, we deny relief.
¶2 In September 2016, Orvis pleaded guilty to possession of marijuana. The plea agreement included a provision stating: "[The] state does not object to the return of any seized legal property to the defendant 90 days following sentencing." The trial court suspended the imposition of sentence and placed Orvis on a three-year probation term. Orvis then filed a request seeking the return of "grow lights" seized by the state, citing the plea agreement. After a hearing, the court denied Orvis's request for return of the lights.
The court did, however, order the state to return a fan, concluding "there is no real evidence that this item was used or possessed to be used to participate" in illegal activity.
¶3 Orvis sought post-conviction relief, citing Rule 32.1(a) and requesting "clarification" of the trial court's order, asserting that if the court had ordered the state "could keep the property," his due process rights had been violated and, if the court's ruling meant the property was subject to forfeiture, the state was required to initiate a forfeiture proceeding. The court dismissed the petition, concluding the claim was not cognizable under any provision of Rule 32.1. This petition for review followed.
¶4 On review, Orvis argues the trial court erred in concluding his claim could not be raised pursuant to Rule 32, asserting the court's order "must by definition be a part of his sentence" because it required him to "give up certain property." Orvis apparently refers to Rule 32.1(a), which allows relief from a "sentence [that] was imposed in violation of the United States or Arizona constitutions," or Rule 32.1(c), which allows relief from a sentence that is "not in accordance with the sentence authorized by law." Rule 32.1(a) and (c) do not encompass Orvis's claim. He has cited no authority, and we find none, suggesting that a provision in a plea agreement regarding seized property makes later proceedings regarding that property part of the defendant's sentence. We agree with the trial court that no other provisions of Rule 32.1 apply to Orvis's claim. The court did not err in summarily dismissing his petition. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015) (post-conviction relief rulings reviewed for abuse of discretion).
In State v. Salerno, the court concluded that a defendant was entitled to appeal a trial court's order denying the return of property seized in a case where the indictment was later dismissed. 216 Ariz. 22, ¶¶ 2, 14 (2007). Similarly, our supreme court has determined that a motion for return of property seized pursuant to search warrants "is civil in nature, and an appeal from an adverse ruling would be governed by the law of civil appeals." Greehling v. State, 135 Ariz. 498, 499 (1982). We express no opinion whether the reasoning in those cases would apply here. --------
¶5 We grant review but deny relief.