Opinion
2 CA-CR 2023-0020-PR
02-27-2023
The State of Arizona, Respondent, v. Leo S. Begay, Petitioner.
Leo S. Begay, Florence In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR2016127396001DT The Honorable Annielaurie Van Wie, Judge Pro Tempore
Leo S. Begay, Florence In Propria Persona
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vásquez and Vice Chief Judge Staring concurred.
MEMORANDUM DECISION
EPPICH, PRESIDING JUDGE
¶1 Leo Begay seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Begay has not met his burden of establishing such abuse here.
¶2 After a jury trial, Begay was convicted of two counts of aggravated driving or actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs and sentenced to concurrent, ten-year prison terms. We affirmed his convictions and sentences on appeal. State v. Begay, No. 1 CA-CR 18-0199 (Ariz. App. July 16, 2019) (mem. decision).
¶3 Nearly two years after our mandate issued in Begay's direct appeal, he filed a notice of and petition for post-conviction relief. In a form petition, he indicated he was raising claims under Rule 32.1(a), (f), and (h) and asserted he had "finally learned" of his claims by "researching [his] case." In an attachment, he argued the trial court had "impermissibly amended the information or indictment" when the clerk read the indictment on the first day of trial by, as we understand his argument, omitting some elements of the offense. He identified a panoply of issues arising from this purported error, including that his due process rights were violated, that he received insufficient notice of the offenses with which he had been charged, and that the court had violated the rules governing amending an indictment. Thus, he concluded, he "is actually innocen[t]." The trial court summarily dismissed the proceeding. This petition for review followed.
¶4 On review, Begay repeats his argument and asserts he has raised claims not subject to preclusion and has adequately justified his failure to timely seek relief. We find no error in the trial court's summary dismissal of Begay's petition. Although he cited Rule 32.1(f) in his petition below, that provision does not apply to an untimely notice of post-conviction relief. And his constitutional claims cannot be raised in this untimely proceeding. See Ariz. R. Crim. P. 32.1(a), 32.4(b)(3)(A).
¶5 Begay asserted in his notice below that his untimely filing was without fault on his part. See Ariz. R. Crim. P. 32.4(b)(3)(D). But a defendant is without fault in failing to file a timely notice when he "was unaware of his right to petition for post-conviction relief or of the time within which a notice of post-conviction relief must be filed or that he intended to challenge the court's decision but his attorney or someone else interfered with his timely filing of a notice." State v. Poblete, 227 Ariz. 537, ¶ 7 (App. 2011). Rule 32.4(b)(3)(D) does not allow a defendant to raise a recently discovered constitutional claim if the defendant had the opportunity to timely seek post-conviction relief and failed to do so. See Poblete, 227 Ariz. 537, ¶ 7. Begay signed a notice describing the deadlines for seeking post-conviction relief.
¶6 As he did below, Begay also couches his claim as one of actual innocence under Rule 32.1(h). A defendant is entitled to relief under Rule 32.1(h) if "the defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would find the defendant guilty of the offense beyond a reasonable doubt." And, a defendant may request relief under Rule 32.1(h) in an untimely proceeding if the claim is brought "within a reasonable time after discovering the basis of the claim." Ariz. R. Crim. P. 32.4(b)(3)(B).
¶7 But even assuming, without deciding, that Begay has adequately explained the nearly two-year delay in raising this claim, he has not shown he is entitled to relief. He does not suggest he did not commit aggravated driving under the influence. Nor does he assert that the jury would have had some basis to acquit him had the indictment been read verbatim to the jury on the first day of trial.
¶8 We grant review but deny relief.