Opinion
No. 2 CA-CR 2019-0081-PR
06-07-2019
THE STATE OF ARIZONA, Respondent, v. ANTHONY JOSEPH STRINGER, Petitioner.
Anthony Joseph Stringer, Buckeye 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NOT FOR PUBLICATION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 Pima County
No. CR20043907
The Honorable Jeffrey T. Bergin, Judge
REVIEW GRANTED; RELIEF DENIED
Anthony Joseph Stringer, Buckeye
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Anthony Stringer seeks review of the trial court's order summarily dismissing his successive petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). We find no such abuse here.
¶2 Following a jury trial, Stringer was convicted of seven felonies: fleeing from a law enforcement vehicle, criminal damage, three counts of aggravated assault, and two counts of endangerment. The trial court sentenced him to enhanced, consecutive and concurrent, presumptive and partially aggravated sentences totaling 35.75 years' imprisonment. We affirmed Stringer's convictions and sentences on appeal, State v. Stringer, 2 CA-CR 2007-0034 (Ariz. App. Sept. 18, 2008) (mem. decision), and denied relief on his petition for review of the court's dismissal of his first petition for post-conviction relief, State v. Stringer, 2 CA-CR 2009-0303-PR (Ariz. App. Mar. 19, 2010) (mem. decision). In 2018, Stringer filed a pro se notice of and petition for post-conviction relief, challenging the legality of his sentences based on a claim of newly discovered evidence. The court summarily dismissed his petition, and this petition for review followed.
Stringer filed an additional notice of post-conviction relief in 2011, which the trial court permitted him to voluntarily withdraw after appointed counsel notified the court she was unable to find any issue to raise in a Rule 32 petition.
¶3 On review, Stringer argues that because the trial court did not cite A.R.S. § 13-604.02 in the sentencing minute entry, but instead "false[ly] conclu[ded]" in its order dismissing his first Rule 32 petition that the Arizona Department of Corrections (ADOC) had miscalculated and then corrected his sentences to comply with the statute, his sentences are illegal. He contends that his recent discovery of the court's "false" explanation regarding the role ADOC played in correcting the omission of § 13-604.02 from the sentencing minute entry constitutes newly discovered evidence under Rule 32.1(e). He also maintains his sentences are illegal because the court failed to impose community supervision.
Section 13-604.02 has subsequently been renumbered as A.R.S. § 13-708 and amended. See 2008 Ariz. Sess. Laws, ch. 301, §§ 17(B), 32. We refer in this decision to the statute as it was numbered and phrased when Stringer committed these offenses and was sentenced. See 1999 Ariz. Sess. Laws, ch. 261, § 7 (former § 13-604.02).
Stringer also raises claims of ineffective assistance of trial and Rule 32 counsel. To the extent he attempts to raise a claim of ineffective assistance of trial counsel for the first time on review, we do not consider it. Cf. State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (appellate court does not consider issues raised for first time in petition for review). And, although Stringer briefly stated in his petition below that he "recently became aware" that Rule 32 counsel was ineffective, we note that as a non-pleading defendant, he is not entitled to the effective assistance of Rule 32 counsel. See State v. Escareno-Meraz, 232 Ariz. 586, ¶ 4 (App. 2013). --------
¶4 In its ruling dismissing Stringer's claim below, the trial court noted that Stringer had previously challenged his sentences and "raised similar issues," and that the trial court and this court had previously ruled upon "the same facts." In our decision denying relief on Stringer's petition for review in his first Rule 32 proceeding, we addressed his related claim that his sentences had been improperly enhanced under § 13-604.02 because the court had not made a finding he was on parole when he committed the offenses. Stringer, 2 CA-CR 2009-0303-PR, ¶¶ 8-11. We noted that "[§] 13-604.02(B) was alleged properly in each count of the indictment against Stringer, and he personally admitted the allegation under oath," and that the court had expressly stated at sentencing that "[a]ll offenses herein are repetitive with two historical prior felony convictions . . . and each was committed while Mr. Stringer was on parole pursuant to A.R.S. [§] 13-604.02." Id. ¶¶ 9-10.
¶5 Importantly, we further noted that the imposition of a flat-time sentence was mandatory under § 13-604.02(B), and concluded:
The sentencing minute entry fails to cite § 13-604.02, an omission that apparently prompted
the Arizona Department of Corrections to ask the trial court for clarification in 2007. But the omission was essentially a clerical or scrivener's error in the minute entry, not a substantive legal error; Stringer's sentences were complete when, and as, pronounced.Id. ¶ 11.
¶6 Accordingly, to the extent Stringer asserts he recently discovered the trial court improperly shifted the blame to ADOC for what he characterizes as a sentencing error, we reject his claim. Based on the record and our ruling in Stringer's first petition for review, we note the court did, in fact, sentence him pursuant to § 13-604.02, despite the omission of that statute from the sentencing minute entry, and we further note that it did not unlawfully "abdicate[]" that responsibility to ADOC as Stringer suggests. Id. We thus necessarily find the court properly dismissed Stringer's petition below, in which he asserted there was newly discovered evidence that probably would have changed his sentence. We instead conclude that Stringer's claims challenging his sentences are untimely. See Ariz. R. Crim. P. 32.2.
¶7 Although we grant the petition for review, relief is denied.