Opinion
No. 2 CA-CR 2014-0382-PR
11-25-2014
THE STATE OF ARIZONA, Respondent, v. LATROY TIMMONS, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Arthur Hazelton, Deputy County Attorney, Phoenix Counsel for Respondent Latroy Timmons, Florence In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUT HORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Maricopa County
No. CR2004019441001DT
The Honorable Roger E. Brodman, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By Arthur Hazelton, Deputy County Attorney, Phoenix
Counsel for Respondent
Latroy Timmons, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred.
VÁSQUEZ, Judge:
¶1 Latroy Timmons seeks review of the trial court's order summarily dismissing his successive and untimely petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Timmons has not met his burden of establishing such abuse here.
¶2 In 2005, Timmons pled guilty to sexual conduct and attempted sexual conduct with a minor under the age of fifteen and attempted kidnapping with sexual intent. The trial court sentenced him to an aggravated, twenty-seven-year prison term for sexual conduct, to be followed by lifetime probation on the other counts.
¶3 Timmons has since sought post-conviction relief on three occasions and been denied relief. In his most recent proceeding, Timmons argued the imposition of lifetime terms of probation was "fundamental error." He asserted the terms constituted "enhanced sentence[s]" that required a jury determination of aggravating factors and he had not waived his right to that determination. The trial court, noting Timmons's claims could not be raised in an untimely proceeding, nonetheless determined the term of lifetime probation for the kidnapping count was improper and reduced the probation term imposed for that offense to five years. The court stated that, although "under ordinary circumstances" it would have dismissed the petition, it reached the issue because the state had sought to amend the probation term in 2006, but that motion had never been ruled on. The court otherwise dismissed Timmons's Rule 32 proceeding.
¶4 On review, Timmons argues he is entitled to similar relief for his attempted sexual conduct conviction. But the trial court was correct that this claim cannot be raised in an untimely post-conviction proceeding like this one. Ariz. R. Crim. P. 32.4(a) (only claims raised pursuant to Rule 32.1(d) through (h) may be raised in untimely proceeding). Although Timmons argued below that his claim could be brought pursuant to Rule 32.1(e) and (f), neither provision applies here. His claimed recent discovery of a legal error in his sentence does not constitute newly discovered evidence under Rule 32.1(e). And he already has had a timely, of-right post-conviction proceeding, and Rule 32.1(f) therefore does not apply. The court did not err in summarily dismissing his petition for post-conviction relief.
¶5 We grant review but deny relief.