Opinion
No. 1 CA-CR 18-0531 PRPC
01-24-2019
STATE OF ARIZONA, Respondent, v. JASON ROBERT STORR, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Daniel Strange Counsel for Respondent Jason Robert Storr, Florence Petitioner
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Petition for Review from the Superior Court in Maricopa County
No. CR2014-147501-001
The Honorable John Christian Rea, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Daniel Strange
Counsel for Respondent
Jason Robert Storr, Florence
Petitioner
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.
CATTANI, Judge:
¶1 Jason Robert Storr petitions for review of the superior court's ruling summarily dismissing his second petition for post-conviction relief. For reasons that follow, we grant review but deny relief.
¶2 Storr pleaded guilty to two counts of sexual assault and three counts of attempted sexual assault. In accordance with the plea agreement, the superior court sentenced Storr to two consecutive 11-year terms of imprisonment, to be followed by three concurrent terms of lifetime probation with sex offender terms.
¶3 Storr filed an of-right petition for post-conviction relief arguing that trial counsel failed to inform him that his terms of imprisonment must be served as "flat time." The State conceded that the parties were under the mistaken belief that Storr would be eligible for "85 percent time." The superior court granted relief and, with the parties' agreement, resentenced Storr to two consecutive 9.34-calendar-year terms of imprisonment (approximately 85% of the original sentences), still to be followed by concurrent terms of lifetime probation with sex offender terms. On the State's motion and with defense counsel's agreement, the court also made a technical amendment to the plea agreement to substitute citations to Arizona Revised Statutes ("A.R.S.") § 13-604 (the dangerous offense sentence enhancement provision in effect at the time of Storr's offenses in 2007) instead of A.R.S. § 13-704 (the renumbered provision in effect at the time of the plea and sentencing).
¶4 Storr then filed a second notice of post-conviction relief. After his counsel found no colorable claims for relief, Storr filed a petition in propria persona arguing, as relevant here, that his counsel, the prosecutor, and the court had erred by resentencing him under A.R.S. § 13-604, based on the premise that the statute had been found unconstitutional and repealed. See, e.g., Ariz. R. Crim. P. 32.1(a) (constitutional violations), (c) (illegal sentence). The superior court summarily dismissed the petition, and this timely petition for review followed.
¶5 On review, Storr again argues that A.R.S. § 13-604 (2007) was repealed as unconstitutional, and thus that reliance on that statute to impose enhanced terms of imprisonment (1) resulted in an illegal sentence, (2) deprived the superior court of jurisdiction, (3) reflected ineffective assistance of defense counsel, (4) reflected misconduct by the prosecutor, and (5) resulted in a double jeopardy and double punishment violation. We review the superior court's dismissal of a petition for post-conviction relief
based on lack of a colorable claim for an abuse of discretion. State v. Amaral, 239 Ariz. 217, 219, ¶ 9 (2016).
¶6 Storr's arguments are based on a faulty premise. Although one subsection of A.R.S. § 13-604—subsection (P)—was held unconstitutional to the extent that it required the court rather than a jury to determine release status for sentence enhancement purposes, see State v. Gross, 201 Ariz. 41, 47, ¶ 27 (App. 2001); see also State v. Head, 1 CA-CR 07-1058, 2008 WL 5056523, at *7, ¶ 26 (Ariz. App. Nov. 25, 2008) (mem. decision), Storr was sentenced to an enhanced term under a different subsection: the first-time dangerous offender provision of subsection (I), which was not invalidated. Moreover, the relevant provision of § 13-604 was not outright repealed as Storr asserts, but simply renumbered as A.R.S. § 13-704. See 2008 Ariz. Sess. Laws, ch. 301, § 28 (48th Leg., 2d Reg. Sess.). The shift did not affect the substance of A.R.S. § 13-604(I) (2007), nor did it change the applicable sentencing range. See A.R.S. § 13-704(A). Although portions of A.R.S. § 13-604 had faced constitutional scrutiny before renumbering, A.R.S. § 13-604(I) had not been repealed or held unconstitutional and the renumbering caused no substantive changes. In short, Storr was sentenced to lawful terms of imprisonment as a first-time dangerous offender.
¶7 Because Storr's arguments regarding the court's jurisdiction, ineffective assistance of counsel, and prosecutorial misconduct are similarly premised on the alleged invalidity of A.R.S. § 13-604 (2007), these claims also fail. First, any defects with the original plea agreement or indictment (which erroneously listed § 13-704 instead of § 13-604 (2007)) did not deprive the court of its jurisdiction. See Ariz. Const. art. 6, § 14(4); A.R.S. § 12-123 (2012); United States v. Cotton, 535 U.S. 625, 630 (2002). Second, Storr's former counsel and the prosecutor did not misrepresent the legality of Storr's sentences, so any claims of ineffective assistance or prosecutorial misconduct fail. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (holding a defendant must show that counsel's performance fell outside the acceptable "range of competence."); State v. Suarez, 23 Ariz. App. 45, 46 (1975) (noting claims must, at the very least, contain the appearance of validity).
¶8 Finally, to the extent Storr's double jeopardy argument is premised on the impropriety of imposing multiple sentences "under the statute that does not exist," it fails for the reasons described above. To the extent he argues that A.R.S. § 13-116, which prohibits consecutive sentences for multiple convictions arising out of a single act, barred imposition of consecutive terms for two of the offenses (sexual assault and attempted
sexual assault) committed on the same occasion, he is precluded from relief because he could have but did not raise this ground in his first petition for post-conviction relief. See Ariz. R. Crim. P. 32.2(a)(3). Moreover, the record reflects that those convictions pertained to different acts—one referring to penile/vaginal intercourse, the other to penile/anal intercourse—and Storr expressly acknowledged in the plea agreement that these offenses referred to "separate and distinct sexual act[s]." His reliance on § 13-116 is thus misplaced.
¶9 Accordingly, we grant review but deny relief.