Opinion
No. 2 CA-CR 2017-0408
10-01-2018
THE STATE OF ARIZONA, Appellee, v. TIMOTHY KEVIN OWENS, Appellant.
COUNSEL James L. Fullin, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellant
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NOT FOR PUBLICATION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). Appeal from the Superior Court in Pima County
No. CR20053547
The Honorable Jeffrey T. Bergin, Judge
AFFIRMED
COUNSEL James L. Fullin, Pima County Legal Defender
By Robb P. Holmes, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 After a jury trial, Timothy Owens was convicted of twenty-two felonies resulting from his participation in an extensive drug-trafficking enterprise. The trial court sentenced him to various concurrent prison terms, including six terms of life imprisonment without the possibility of "parole" for twenty-five years. We affirmed his convictions and sentences on appeal. State v. Owens, No. 2 CA-CR 2007-0046 (Ariz. App. Feb. 14, 2008) (mem. decision).
Owens has also sought and been denied post-conviction relief on three occasions. State v. Owens, No. 2 CA-CR 2017-0302-PR (Ariz. App. Mar. 2, 2018) (mem. decision); State v. Owens, No. 2 CA-CR 2013-0549-PR (Ariz. App. May 9, 2014) (mem. decision); State v. Owens, No. 2 CA-CR 2010-0293-PR (Ariz. App. Jan. 7, 2011) (mem. decision).
¶2 In 2016, a federal district court partially granted Owens's petition for writ of habeas corpus, concluding one of his convictions for possession of a dangerous drug for sale was "the same crime" as another conviction, and so that conviction and sentence must be "overturn[ed]." The district court remanded the case to the trial court "for resentencing." On remand, the trial court vacated the life prison term imposed for that conviction. Owens filed a notice of appeal. He also filed a pro se motion citing Rule 24.3, Ariz. R. Crim. P., arguing his life sentences were improper because parole had been abolished. The court denied that motion, concluding it was untimely as to Owens's remaining life sentences. Owens filed a notice of appeal from that ruling.
The Arizona legislature "abolished parole for all crimes committed after January 1, 1994," well before Owens's offenses. State v. Valencia, 241 Ariz. 206, ¶ 23 (2016); see also 1993 Ariz. Sess. Laws, ch. 255, § 88. --------
¶3 Counsel has filed briefs in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530 (App. 1999), asserting he has reviewed the record but found no arguably meritorious issue to raise on appeal of either order. Consistent with Clark, 196 Ariz. 530, ¶ 32, he has provided "a detailed factual and procedural history of the case with citations to the record." Owens has not filed a supplemental brief.
¶4 By vacating one of Owens's life terms, the trial court complied with the directive of the federal district court. And it correctly concluded Owens's remaining life sentences were not subject to review pursuant to Owens's Rule 24.3 motion. See Ariz. R. Crim. P. 24.3(a) (motion to modify sentence must be filed "[n]o later than 60 days of the entry of judgment and sentence"); State v. Hartford, 145 Ariz. 403, 405 (App. 1985) (trial court limited to issues presented by remand).
¶5 We affirm the trial court's order vacating Owens's life term for one count of possession of a dangerous drug for sale and its order denying his motion made pursuant to Rule 24.3.