Opinion
2 CA-CR 2024-0100-PR
08-27-2024
The State of Arizona, Respondent, v. Carl Lee Blackman, Petitioner.
Rachel H. Mitchell, By Faith C. Klepper, Counsel for Respondent. Carl L. Blackman, 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. CR2015140197001DT The Honorable Joseph Kiefer, Judge.
Rachel H. Mitchell, By Faith C. Klepper, Counsel for Respondent.
Carl L. Blackman, In Propria Persona
Chief Judge Staring authored the decision of the Court, in which Presiding Judge Gard and Judge Eckerstrom concurred.
MEMORANDUM DECISION
STARING, Chief Judge:
¶1 Petitioner Carl Blackman seeks review of the superior court's ruling summarily dismissing his successive petition for post-conviction relief filed pursuant to Rule 33, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Bennett, 213 Ariz. 562, ¶ 17 (2006). Blackman has not met his burden of establishing such abuse here.
¶2 Pursuant to a 2016 plea agreement, Blackman was convicted of failing to register as a sex offender. The superior court suspended the imposition of sentence and placed Blackman on a six-year term of probation. In 2017, the court found Blackman had violated the terms of his probation, suspended the imposition of sentence, and reinstated him on a six-year term of probation upon his release from prison in a different case. Shortly thereafter, Blackman sought post-conviction relief, but appointed counsel filed a notice that she had reviewed the record and was unable to find any colorable claims. After Blackman failed to file a pro se petition, the court dismissed the proceeding.
¶3 In April and May 2022, the superior court again found Blackman had violated the terms of his probation. Each time, the court suspended the imposition of sentence and reinstated Blackman's six-year term of probation.
¶4 In August 2022, Blackman initiated the current proceeding for post-conviction relief. The superior court appointed new counsel, who subsequently filed a notice that she had reviewed the record but had not "identified any colorable claims for relief." Blackman filed a pro se petition in July 2023. The following month, the court again found Blackman had violated the terms of his probation and sentenced him to a presumptive term of 2.5 years' imprisonment. Blackman amended his Rule 33 petition in November 2023.
¶5 In April 2024, the superior court summarily dismissed Blackman's petition. The court found that Blackman's current proceeding was successive and untimely and that he had failed to provide sufficient reasons why he could not have raised his current claims in his prior Rule 33 proceeding. The court nevertheless addressed the merits of Blackman's claims, finding that State v. Burbey, 243 Ariz. 145 (2017), "does not provide a defense" to Blackman "at this stage of the proceeding." The court also concluded that it had not "exceed[ed] its authority by ordering sex offender conditions with a term of probation" and that "there was no ineffective assistance of counsel." This petition for review followed.
¶6 On review, Blackman argues that the superior court erred in dismissing his petition without an evidentiary hearing. He again relies on Burbey for the proposition that he "was not required to register a new address or residence within the otherwise required 72 hours of becoming homeless." But the superior court properly concluded that Burbey does not entitle Blackman to relief.
The superior court incorrectly noted that Blackman had filed his first petition for post-conviction relief in December 2016. It was filed in December 2017, which was after Burbey had been decided.
¶7 In Burbey, our supreme court concluded that, pursuant to A.R.S. § 13-3822(A), a transient individual need only "register as a transient not less than every ninety days" if the person "does not have an address or a permanent place of residence." 243 Ariz. 145, ¶ 1. According to the court, there was no need for such a person to "notify law enforcement officials of their new 'residence' or address within seventy-two hours after they move." Id. Here, however, nothing in the record before us establishes that Blackman was transient at the time of his offense. Instead, according to the record, Blackman moved from his prior residence to his girlfriend's apartment-where he had been staying for at least six months-without registering the apartment's address.
The transcript from the change of plea hearing is not part of our record.
To the extent Blackman contends that pursuant to Burbey, he did not violate the terms of his probation in 2022, we disagree. Those probation violations were based on separate infractions, including, among others, absconding and his failure to register within seventy-two hours of being released from custody.
¶8 Blackman also argues that § 13-3822(A) is unconstitutionally vague, "rending the statute void" as applied to him and meaning the superior court lacked "subject-matter jurisdiction to impose a sentence on [him]." But this constitutional claim is precluded as waived in this successive proceeding. See Ariz. R. Crim. P. 33.1(a), 33.2(a)(3).
¶9 Blackman next challenges the superior court's decision to impose "six years of probation with sex offender terms and conditions," reasoning that the court "deviate[d]" from the stipulated terms of the plea agreement. But the record contradicts his claim. The plea agreement lists a sentencing range of 2.5 to 3.75 years and provides that "[p]robation is available." It then provides that "[t]he parties stipulate . . . subject to court approval at the time of sentencing" that Blackman "shall be placed on Supervised Probation for no less than six (6) years and shall register as a sex offender." See A.R.S. § 13-902(F). The agreement further provides that Blackman "shall register with the Sheriff as a sex offender, within 10 days after his conviction or release from custody." In addition, contrary to Blackman's assertion, nothing in the record before us indicates the state "quietly recommended" a dangerous crimes against children "enhancement." Indeed, the court classified his offense as non-dangerous and non-repetitive under A.R.S. § 13-702.
Blackman does not meaningfully reassert and support his related claim of ineffective assistance of counsel. We therefore deem it waived. See Ariz. R. Crim. P. 33.16(c)(4); State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (claim waived on review because defendant cites no relevant authority and does not develop argument in meaningful way). Even assuming it were not waived, however, Blackman is not entitled to relief because he has not established that counsel provided deficient performance. See State v. Donald, 198 Ariz. 406, ¶ 17 (App. 2000) ("To achieve a hearing on such a claim, a defendant must present more than a conclusory assertion that counsel failed to adequately communicate the plea offer or the consequences of conviction.").
¶10 Accordingly, we grant review but deny relief.