Opinion
No. 2 CA-CR 2013-0285-PR
11-19-2013
THE STATE OF ARIZONA, Respondent, v. JERRY LEWIS ANGTON, Petitioner.
Jerry Lewis Angton, 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24
Petition for Review from the Superior Court in Maricopa County
No. CR2003040453001SE
The Honorable Sherry K. Stephens, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Jerry Lewis Angton, Florence In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Petitioner Jerry Angton seeks review of the trial court's summary dismissal of his petition for habeas corpus relief, which the court treated as a successive notice of post-conviction relief pursuant to Rule 32.3, Ariz. R. Crim. P. We grant review but, for the following reasons, we deny relief.
¶2 Pursuant to a plea agreement, Angton was convicted of two counts of sexual assault, found to be dangerous-nature offenses pursuant to former A.R.S. § 13-604, 1993 Ariz. Sess. Laws, ch. 255, § 7, and two counts of attempted sexual assault, all committed in November 1994. The trial court sentenced him to enhanced, consecutive, and partially aggravated twelve-year prison terms for the sexual assault convictions, to be followed by concurrent terms of lifetime probation for the attempted sexual assaults.
The trial court's sentencing minute entry incorrectly designates the sexual assaults as "Non Dangerous" offenses, despite its citation to former § 13-604, the statute governing sentence enhancements for dangerous-nature offenses at the time Angton committed his crimes. See 1993 Ariz. Sess. Laws, ch. 255, § 7. Record documents, however, including Angton's plea agreement and transcripts of the change of plea and sentencing hearings, establish he was sentenced pursuant to that statute for a dangerous-nature offense. "When a discrepancy between the trial court's oral pronouncement of a sentence and the written minute entry can be clearly resolved by looking at the record, the '[o]ral pronouncement in open court controls over the minute entry.'" State v. Ovante, 231 Ariz. 180, ¶ 38, 291 P.3d 974, 982 (2013), quoting State v. Whitney, 159 Ariz. 476, 487, 768 P.2d 638, 649 (1989) (alteration in Ovante).
¶3 In his petition below, Angton argued (1) lifetime probation had not been a statutorily authorized disposition for his attempted sexual assault convictions under the rule announced in State v. Peek, 219 Ariz. 182, ¶¶ 12-20, 195 P.3d 641, 643-44 (2008); (2) the trial court should have sentenced him to concurrent, rather than consecutive prison terms for his sexual assault convictions; (3) the execution of his sentences as "flat-time" terms of imprisonment, without eligibility for early release, is inconsistent with the rule announced in State v. Tarango, 185 Ariz. 208, 212, 914 P.2d 1300, 1304 (1996); (4) because he was unaware of the law as stated in Tarango and Peek, his plea "was not knowing[ly] and intelligently made"; (5) his sentences violate the prohibition against double jeopardy; and (6) his trial counsel rendered ineffective assistance during the plea process.
¶4 The trial court identified these claims as cognizable under Rule 32.1(a) and, noting that this was Angton's "third request for post-conviction relief," found the claims precluded. See Ariz. R. Crim. P. 32.2(a)(3) (preclusion of claims "waived at trial, on appeal, or in any previous collateral proceeding"); 32.4(a) (untimely notice "may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h)"). Relying on State v. Shrum, 220 Ariz. 115, 203 P.3d 1175 (2009), the court also rejected any argument that Peek constituted a significant change in the law that would support a non-precluded claim for relief under Rule 32.1(g). The court thus found Angton had "fail[ed] to state a claim for which relief can be granted in an untimely or successive Rule 32 proceeding," denied his petition for writ of habeas corpus and dismissed the Rule 32 proceeding. The court subsequently denied Angton's motion for reconsideration of that ruling, and this petition for review followed.
¶5 On review, Angton contends the trial court abused its discretion in construing his petition for a writ of habeas corpus as a notice of post-conviction relief and then dismissing his claims without benefit of a Rule 32 petition prepared by counsel, in "violat[ion of his] state and federal constitutional rights to due process." Although his arguments are not entirely clear, he asserts the dismissal was improper because he had alleged claims "grounded in a newly announced rule of constitutional law which, if applied to [his] case[,] probably would alter the sentences imposed" and because the court "denied some claims as being precluded, denied some claims as being cognizable, and denied some claims on the merits—all without presentation of a formal Petition." We review a trial court's summary denial of post-conviction relief for an abuse of discretion. State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006). We find none here.
Discussion
¶6 As an initial matter, Angton is mistaken that the trial court "denied some claims as being precluded . . . and denied some claims on the merits." As addressed above, the court found all of Angton's claims precluded, as expressed in its conclusion that none of them could be raised in a successive Rule 32 proceeding. In asserting the court "denied some claims as being cognizable," Angton appears to have misunderstood the court's statement that he had "raised six cognizable claims for post-conviction relief." All of Angton's claims fall within the recognized—or "cognizable"—ground for post-conviction relief in Rule 32.1(a), but they are precluded because Angton failed to raise them in a first, timely Rule 32 proceeding. See Ariz. R. Crim. P. 32.2(a)(3).
This includes Angton's claim pursuant to Peek, notwithstanding the trial court's suggestion that Angton's challenge to lifetime probation was precluded under Rule 32.2(a)(2) because he had raised the same claim in his second Rule 32 notice. That portion of the rule precludes only those claims "[f]inally adjudicated on the merits on appeal or in any previous collateral proceeding," and Angton's earlier claim had not been adjudicated on its merits but, implicitly, had been found precluded by waiver under Rule 32.2(a)(3), which is therefore the proper basis for finding all of Angton's claims precluded in this proceeding. Although we agree with the trial court that Angton's claim for relief pursuant to Peek is precluded under Rule 32, relief from the lifetime term of probation may be available by way of a motion to modify probation. See Ariz. R. Crim. P. 27.3; State v. Dean, 226 Ariz. 47, ¶ 21, 243 P.3d 1029, 1036 (App. 2010). Although it appears a probation officer filed such a motion in November 2009, the record before us does not include a ruling on that request.
Resolution of Habeas Petition under Rule 32
¶7 Rule 32.3 provides that a defendant's application for a writ of habeas corpus "raising any claim attacking the validity of his or her conviction or sentence" shall be treated "as a petition for relief under this rule and the procedures of this rule shall govern." The trial court applied this rule correctly in resolving Angton's claims under Rule 32, although it treated Angton's habeas petition as a notice of post-conviction relief rather than as a Rule 32 petition. We cannot say the court abused its discretion in doing so.
¶8 Ordinarily, a Rule 32 proceeding "is commenced by timely filing a notice of post-conviction relief." Ariz. R. Crim. P. 32.4(a). Under Rule 32.2(b), a successive or untimely notice of post-conviction relief is subject to summary dismissal unless it sets forth a non-precluded claim and "meritorious reasons . . . substantiating the claim and indicating why the claim was not stated in the previous petition or in a timely manner." We have observed that this rule serves a "gate-keeping function" by directing courts "to dismiss facially non-meritorious notices" of post-conviction relief. State v. Harden, 228 Ariz. 131, ¶ 11, 263 P.3d 680, 683 (App. 2011). Rule 32.6(c) similarly provides for a court to summarily dismiss a petition for post-conviction relief if it determines, "[o]n reviewing the petition, response, reply, files and records," that a defendant has raised only precluded or non-colorable claims.
¶9 Here, the trial court was able to determine, based on Angton's habeas petition alone, that all of his claims were precluded by his failure to raise them in his first Rule 32 proceeding. The court correctly concluded Angton's citation to Peek did not provide a "meritorious reason[]," as required by Rule 32.2(b), for finding an exception to preclusion under Rule 32.1(g), because Peek did not constitute a "significant change in the law" that might entitle him to relief. See Shrum, 220 Ariz. 115, ¶¶ 21-23, 203 P.3d at 1180 (first appellate opinion interpreting statute is not significant change in the law for purpose of Rule 32.1(g)). We find no abuse of discretion in the court's consideration of Angton's petition for habeas relief under Rule 32 or in dismissing his claims at this stage of the proceedings.
Angton argues that the trial court's dismissal "preclud[ed] presentation of a Petition" on his claims. But he filed a petition for habeas corpus relief and, under Rule 32.3, he was not entitled to file a second petition after the court determined the proceeding would be governed by Rule 32. To the extent he suggests he was entitled to representation by counsel in this proceeding, he is mistaken. See Ariz. R. Crim. P. 32.4(c)(2) (appointment of counsel in untimely Rule 32 proceeding "within the discretion of the presiding judge").
¶10 Moreover, Angton "is not entitled to habeas corpus relief because he does not allege any facts which show that he is entitled to immediate release from custody." Brown v. State, 117 Ariz. 476, 477, 573 P.2d 876, 877 (1978). Similarly, with respect to his claim pursuant to Tarango, Angton has not alleged facts suggesting he "is being held in custody after the sentence imposed has expired" under Rule 32.1(d), a claim that would not be subject to preclusion in an untimely or successive petition. See Ariz. R. Crim. P. 32.2(b).
This claim appears to challenge the execution of his sentences by the Arizona Department of Corrections (ADOC), rather than their imposition, and may be related to an error in the trial court's sentencing minute entry designating the offenses as nondangerous. See supra note 1; see also State v. Ariz. Dep't of Corrs., 187 Ariz. 211, 213, 928 P.2d 635, 637 (1996). In a previous Rule 32 proceeding, Angton submitted paperwork from ADOC calculating his release date from his first twelve-year term, when construed as a flat-time sentence, as November 5, 2015. It appears that if Angton's offenses were correctly designated dangerous, he may be eligible within a few months for release to his second twelve-year sentence.
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Preclusion of Ineffective Assistance Claims
¶11 For the first time on review, Angton suggests he should not be precluded from raising his untimely claim that counsel was ineffective in negotiating his plea agreement because the Supreme Court's decisions in Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376 (2012), constitute a significant change in the law, under Rule 32.1(g), relevant to his claims. Our review is limited to those "issues . . . decided by the trial court," Ariz. R. Crim. P. 32.9(c)(1)(ii), and we do not consider issues raised for the first time on review, State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980). We note, however, that Arizona courts have long recognized a pleading defendant's right to effective representation, see, e.g., State v. Anderson, 147 Ariz. 346, 352, 710 P.2d 456, 462 (1985), and these cases do not appear to mark a "transformative event" with respect to Angton's claims, see Shrum, 220 Ariz. 115, ¶ 15, 203 P.3d at 1178.
Disposition
¶12 For the foregoing reasons, although we grant review, we deny relief.