Opinion
No. 2 CA-HC 2019-0006
03-09-2020
OLIVER MICHAEL PRYOR, Petitioner/Appellant, v. DAVID SHINN, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS, Respondent/Appellee.
COUNSEL Oliver M. Pryor, Florence In Propria Persona Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent/Appellee
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NOT FOR PUBLICATION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. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. CR20062087
The Honorable Renee T. Bennett, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Oliver M. Pryor, Florence
In Propria Persona Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. VÁSQUEZ, Chief Judge:
¶1 Petitioner Oliver Pryor seeks review of the trial court's summary dismissal of his petition for writ of habeas corpus, which the court treated as a petition for post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P. For the reasons stated below, we grant review but deny relief.
¶2 After a jury trial, Pryor was convicted of two counts of continuous sexual abuse of a child, both dangerous crimes against children, and two counts of furnishing obscene or harmful items to minors. The trial court sentenced him to consecutive and concurrent, presumptive prison terms totaling 42.5 years. This court affirmed his convictions and sentences on appeal. State v. Pryor, No. 2 CA-CR 2008-0375 (Ariz. App. Oct. 21, 2009) (mem. decision).
¶3 Thereafter, Pryor filed a petition for post-conviction relief, raising a claim of ineffective assistance of trial counsel. The trial court summarily dismissed Pryor's petition, and this court denied relief on review. State v. Pryor, No. 2 CA-CR 2010-0399-PR (Ariz. App. Apr. 7, 2011) (mem. decision). Pryor then filed a successive petition for post-conviction relief, raising claims of ineffective assistance of appellate and Rule 32 counsel, but again the trial court summarily dismissed his petition and this court denied relief on review. State v. Pryor, No. 2 CA-CR 2012-0247-PR (Ariz. App. Oct. 12, 2012) (mem. decision).
¶4 Approximately seven years later, in July 2019, Pryor filed a "Petition for State Writ of Habeas Corpus Relief," alleging three grounds for relief: "invalid law," "fraud," and "lack of subject matter jurisdiction." Specifically, he argued that he was "charged, tried, convicted, and sentenced for allegedly being in violation of" A.R.S. §§ 13-604 and 13-702.02, which he maintained "were recognized as unconstitutional." In addition, Pryor asserted that "the legal process in which [he] was formally accused . . . was at all times fraudulent . . . and fatally defective" because the statutes under which he had been charged, §§ 13-604 and 13-702.02, were found "unconstitutional." He likewise argued that the trial court lacked subject matter jurisdiction because his indictment referred to §§ 13-604 and 13-702.02, which was "unconstitutional."
¶5 The trial court first determined that it had to treat Pryor's "Petition" as one for post-conviction relief pursuant to Rule 32.3(b). It then reasoned that Pryor's petition "is encompassed within Rule 32.1(a) as a claim that a defendant's 'conviction was obtained, or sentence was imposed in violation of the Constitution of the United States or the State of Arizona.'" And the court pointed out that, under Rule 32.4(a)(2)(C), "a defendant must file his notice of post-conviction relief no later than 90 days after the entry of judgment and sentence, or no later than 30 days after the issuance of the order and mandate in the direct appeal, whichever is later." Because Pryor filed his petition "more than nine years after the applicable deadline," the court found it "was not timely filed." The court also concluded that Pryor had not "asserted a claim for relief under Rule 32.1(d) through (h) that are exempt from the time limit." Accordingly, the court dismissed the petition. This petition for review followed.
¶6 "If a court receives any type of application or request for relief—however titled—that challenges the validity of the defendant's conviction or sentence following a trial, it must treat the application as a petition for post-conviction relief." Ariz. R. Crim. P. 32.3(b). We will not disturb a ruling on a petition for post-conviction relief unless the trial court clearly abused its discretion. State v. Gutierrez, 229 Ariz. 573, ¶ 19 (2012).
Rule 32 was amended effective January 1, 2020. See Ariz. Sup. Ct. Order R-19-0012 (Aug. 28, 2019). Because application of the new rule is neither infeasible nor works an injustice here, we apply it. See id.; see also State v. Botello-Rangel, No. 1 CA-CR 19-0332 PRPC, n.1, 2020 WL 896477 (Ariz. Ct. App. Feb. 25, 2020).
¶7 On review, Pryor first argues the trial court erred in treating his petition as one for post-conviction relief and applying the "Rule 32 procedures" to this proceeding. He maintains his petition did "not present a single claim which attacks the validity of the conviction or sentence, which is the only prerequisite for treating a writ of habeas corpus as a Rule 32 petition."
¶8 Pryor's petition asserted he "ha[d] been unlawfully charged, tried, convicted, sentenced, and imprisoned" based on purportedly "unconstitutional statutes." Thus, although he did not expressly indicate that he was "challeng[ing] the validity" of his conviction or sentence, that is in effect what he was doing. Ariz. R. Crim. P. 32.3(b); see Floyd v. Superior Court, 134 Ariz. 472, 473-74 (App. 1982) (Rule 32 covers situations which permit collateral attack on conviction or sentence). The trial court therefore did not err in treating Pryor's petition as a petition for post-conviction relief and applying the provisions of Rule 32. See Ariz. R. Crim. P. 32.3(b) (describing court's treatment of petition as one of post-conviction relief as mandatory).
¶9 Pryor next contends the trial court abused its discretion "when it found the [petition] was not timely filed." He maintains that his petition raised "the claims of [f]raud, [i]nvalid law and lack of jurisdiction," that "a question regarding the court's lack of jurisdiction over the subject matter may be raised at any time," and that the court erred in not considering whether he asserted a claim under Rule 32.1(b).
"Subject matter jurisdiction is the power to hear and determine cases of the general class to which the particular proceedings belong." State v. Payne, 223 Ariz. 555, ¶ 6 (App. 2009) (quoting In re Marriage of Dorman, 198 Ariz. 298, ¶ 7 (App. 2000)). To the extent Pryor's claim could be construed as jurisdictional, it would be one of personal jurisdiction. Cf. State ex rel. Baumert v. Mun. Court of City of Phx., 124 Ariz. 543, 546 (App. 1979) (defect in issuance of complaint goes to jurisdiction over person, not subject matter).
¶10 While Pryor's petition characterized the grounds raised as "invalid law," "fraud," and "lack of subject matter jurisdiction," the basis of all three claims was the same—that Pryor had been unlawfully charged, convicted, and sentenced because §§ 13-604 and 13-702.02, under which his offenses were based, were declared unconstitutional. Thus, we agree with the trial court that his claims are "encompassed within Rule 32.1(a)." In addition, those Rule 32.1(a) claims were untimely under Rule 32.4(b)(3)(A) because Pryor's petition was filed more than thirty days after the mandate in his direct appeal. The court therefore did not err in summarily dismissing his petition. See Canion v. Cole, 210 Ariz. 598, ¶ 11 (2005) (compliance with Rule 32 not mere formality; parties must strictly comply).
To the extent Pryor's claims could be characterized as falling under Rule 32.1(b) or (c), he did not sufficiently explain that he raised them within a reasonable time after discovering them. See Ariz. R. Crim. P. 32.4(b)(3)(B).
¶11 Moreover, Pryor's claims are also precluded. See State v. Lopez, 234 Ariz. 513, ¶ 10 (App. 2014) (this court obliged to affirm trial court if result legally correct for any reason). Pryor asserts that §§ 13-604 and 13-702.02 were "repealed by the legislative branch in 2008-2009." He therefore could have raised his claims on appeal or in one of his two prior post-conviction proceedings. Because he did not do so, they are now waived. See Ariz. R. Crim. P. 32.2(a)(3).
¶12 For the reasons stated above, we grant review but deny relief.