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State v. Aldridge

ARIZONA COURT OF APPEALS DIVISION TWO
Feb 20, 2020
No. 2 CA-CR 2019-0200-PR (Ariz. Ct. App. Feb. 20, 2020)

Opinion

No. 2 CA-CR 2019-0200-PR

02-20-2020

THE STATE OF ARIZONA, Respondent, v. KENNETH RAY ALDRIDGE, Petitioner.

Kenneth R. Aldridge, Florence 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NOT FOR PUBLICATION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. CR20103053001
The Honorable Wayne E. Yehling, Judge

REVIEW GRANTED; RELIEF DENIED

Kenneth R. Aldridge, Florence
In Propria Persona

MEMORANDUM DECISION

Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Vásquez concurred. BREARCLIFFE, Judge:

¶1 Kenneth Aldridge seeks review of the trial court's order summarily dismissing his July 2019 petition for writ of habeas corpus, which the court treated as a petition for post-conviction relief pursuant to former Rule 32.3(b), 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). Aldridge has not shown such abuse here.

We thus refer to that pleading as a petition of post-conviction relief in this decision. The Supreme Court of Arizona abrogated the prior version of Rule 32 and adopted new Rule 32 and Rule 33, effective January 1, 2020. Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019). We address the applicability of the new rules to this case below.

¶2 In March 2011, Aldridge pleaded guilty to molestation of a child and sexual conduct with a minor under fifteen in the second degree for offenses that occurred in 1999 and 2009. Pursuant to the sentencing range set forth in the plea agreement, the trial court imposed consecutive sentences totaling twenty-seven years. Aldridge filed a timely notice of post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but found "no basis in fact and/or law for post-conviction relief." Aldridge did not file a pro se supplemental petition, and the court dismissed the post-conviction proceeding in February 2012.

¶3 More than two years later, in June 2014, Aldridge filed his second notice of post-conviction relief, asserting he intended to raise claims of ineffective assistance of counsel, newly discovered evidence and actual innocence. Finding he had failed to state why he had not raised the claims in a previous petition or in a timely manner, see former Ariz. R. Crim. P. 32.2(b), the trial court summarily dismissed his notice. In April 2016, he filed a third notice, asserting the same claims and also challenging the terms of his plea agreement, which the court also summarily dismissed. And, in October 2017, the court summarily dismissed Aldridge's fourth post-conviction proceeding, in which he asserted similar claims and generally contended that his late filing was not his fault. Aldridge did not seek review of any of the above-referenced rulings.

¶4 In July 2019, almost two years after the dismissal of his fourth post-conviction proceeding, Aldridge filed a petition for writ of habeas corpus, which as previously noted, the trial court treated as a petition for post-conviction relief. Aldridge argued he was charged under an indictment based on "invalid laws," asserting A.R.S. §§ "13-604(P)" and 13-702.01 had been recognized as unconstitutional in an "unreported" case, thereby depriving the court of subject matter jurisdiction and rendering his indictment, convictions and sentences void. In an apparent attempt to explain the untimeliness of his most recent filing, his fifth post-conviction proceeding, Aldridge wrote, without any meaningful explanation or support, that this information "just came to [his] att[ention]." Determining Aldridge had "raised no colorable issues of fact or law," the court summarily dismissed his petition. This petition for review followed.

It appears Aldridge is referring to A.R.S. § 13-604.01, rather than § 13-604(P). Former A.R.S. § 13-604.01 was renumbered as § 13-705 and amended by 2008 Ariz. Sess. Laws, ch. 301, §§ 17, 29. We also note that § 13-702.01 has been repealed, 2008 Ariz. Sess. Laws, ch. 301, § 25, and that its substantive provisions were modified and moved to become part of A.R.S. §§ 13-702 and 13-703. See 2008 Ariz. Sess. Laws, ch. 301, §§ 24, 28.

¶5 On review, Aldridge expands on the argument raised in his petition below, asserting that his convictions and sentences are void because the indictment referred to statutes that were found to be unconstitutional in 2008 and 2009. He also reasserts his related claim that the trial court lacked subject matter jurisdiction over his case because his convictions were based on those unconstitutional statutes. The new version of Rule 32 and newly promulgated Rule 33 apply to actions pending on January 1, 2020, "except to the extent that the court in an affected action determines that applying the rule or amendment would be infeasible or work an injustice, in which event the former rule or procedure applies." Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019). Aldridge's case was arguably pending in this court on January 1, 2020. However, we note that the outcome in this case is the same under either the former or new version of the rules, as explained below.

¶6 Although it is not entirely clear, Aldridge's claims were arguably cognizable as claims of lack of jurisdiction and illegal sentence under former Rule 32.1(b) and (c), which were clearly time-barred when the trial court ruled based on former Rule 32.2. Similarly, assuming Aldridge also asserted a claim that the sentence was unconstitutional under former Rule 32.1(a), that claim was also time-barred under former Rule 32.2 and it remains time-barred under the current rule. See Ariz. R. Crim. P. 33.4(b)(3)(A). Accordingly, although the court determined Aldridge had "raised no colorable issues of fact or law" in his petition below, it could have simply dismissed his claims as untimely. We thus conclude the court did not err in summarily dismissing his petition under the former rules. See State v. Banda, 232 Ariz. 582, n.2 (App. 2013) (appellate court may affirm trial court for any reason supported by the record).

¶7 Assuming that "pending" in this court means this case is pending for purposes of the application of the new rules, and further assuming those rules apply, summary dismissal of the petition was proper. Claims of lack of subject matter jurisdiction and challenges to the legality of a sentence are no longer subject to the time limits for filing of a notice. Compare former Rule 32.4, with current Rule 33.4(b)(3) (claims under Rules 33.1(b) through (h) must be raised in a notice filed within a reasonable time after discovery of basis for claim). Nor are such claims subject to the same rules of preclusion as before the changes in the rule. See Ariz. R. Crim. P. 33.2(b)(1) (claims under Rule 33.1(b) through (h) precluded only if previously adjudicated on the merits). However, "when a defendant raises a claim that falls under Rule 33.1(b) through (h) in a successive or untimely post-conviction proceeding, the defendant must explain the reasons for not raising the claim in a previous notice or petition, or for not raising the claim in a timely manner." Ariz. R. Crim. P. 33.2(b)(1). Here, other than stating his claims "just came to [his] att[ention]," Aldridge essentially gave the trial court no reason why he failed to raise them in a previous notice or petition or in a timely manner. In any event, even if we were to infer that the court had excused Aldridge's untimely filing as to these claims, it nonetheless appears to have rejected them on the merits when it found he had "raised no colorable issues of fact or law." And, because Aldridge failed to establish the court lacked jurisdiction and cited no authority establishing his sentence was illegal, we cannot say the court abused its discretion by so finding.

Moreover, even if we were to treat Aldridge's claim that his sentence was unconstitutional as one raised pursuant to Rule 33.1(a), Ariz. R. Crim. P., it was nonetheless time-barred and precluded. See Ariz. R. Crim. P. 33.2, 33.4(b)(3)(A). --------

¶8 We grant review but deny relief.


Summaries of

State v. Aldridge

ARIZONA COURT OF APPEALS DIVISION TWO
Feb 20, 2020
No. 2 CA-CR 2019-0200-PR (Ariz. Ct. App. Feb. 20, 2020)
Case details for

State v. Aldridge

Case Details

Full title:THE STATE OF ARIZONA, Respondent, v. KENNETH RAY ALDRIDGE, Petitioner.

Court:ARIZONA COURT OF APPEALS DIVISION TWO

Date published: Feb 20, 2020

Citations

No. 2 CA-CR 2019-0200-PR (Ariz. Ct. App. Feb. 20, 2020)