Opinion
2 CA-CR 2022-0112-PR
12-13-2022
The State of Arizona, Respondent, v. Bruce Howard Braggs, Petitioner.
Bruce Howard Braggs, Phoenix In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County Nos. CR20160666001 and CR20181925001 The Honorable Danelle B. Liwski, Judge The Honorable Deborah Bernini, Judge
Bruce Howard Braggs, Phoenix In Propria Persona 1
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Eckerstrom and Judge Cattani concurred.
MEMORANDUM DECISION
VÁSQUEZ, CHIEF JUDGE
¶1 Bruce Braggs seeks review of the trial court's rulings dismissing his motions to modify sentence and to amend time credit, which the court treated as a petition for post-conviction relief, filed pursuant to Rules 32 and 33, Ariz. R. Crim. P., and his subsequent motion for reconsideration. For the following reasons, we deny review.
¶2 After a jury trial in CR20160666, Braggs was convicted of four counts of aggravated driving under the influence (DUI). Pursuant to a plea agreement in CR20181925, Braggs was also convicted of second-degree burglary. The trial court held one sentencing hearing as to both cause numbers, imposing concurrent, eight-year prison terms for the four DUI convictions, with 164 days' presentence incarceration credit, and a concurrent 3.5-year prison term for the burglary conviction, with 70 days' presentence incarceration credit. After Braggs received post-conviction relief to file a delayed appeal, this court affirmed his convictions and sentences in CR20160666. State v. Braggs, No. 2 CA-CR 2019-0297 (Ariz. App. Nov. 20, 2020) (mem. decision).
¶3 In December 2021, Braggs initiated another proceeding for post-conviction relief in CR20160666. Appointed counsel later filed a notice that he was "unable to identify any colorable claim." The trial court gave Braggs leave to file a pro se petition.
¶4 In May 2022, Braggs simultaneously filed, under both cause numbers, a motion to modify sentence, pursuant to Rule 24.3, Ariz. R. Crim. P., as well as a motion to amend time credit. In the motion to modify sentence, Braggs argued that the trial court had been "ambiguous" with his prison sentence in CR20160666 because it indicated it was imposing a "slightly mitigated" term when in fact it imposed a "minimum sentence." 2
As a category three repetitive offender, Braggs was sentenced under A.R.S. § 13-703(J), which provides the following range for a class four felony, like Braggs's DUI offenses: mitigated term is six years, minimum term is eight years, presumptive term is ten years, maximum term is twelve years, and aggravated term is fifteen years. See A.R.S. § 28-1383(A)(1), (2), (O)(1).
He asked the court to "modify" his sentence to "more than the mitigated but less than the minimum sentence." In the motion to amend time credit, Braggs asked the court to award 164 days' presentence incarceration credit as to his sentence in CR20181925, "in addition" to the 70 days already ordered. The court treated his motions as a pro se petition for post-conviction relief and ordered the state to file a response.
¶5 After reviewing the state's response and the record, the trial court dismissed the proceeding in June 2022. As to the modification of his sentence, the court determined that the motion was untimely filed and, in any event, that "the sentence was lawful and lawfully imposed." The court explained that the eight-year prison term was "within the lawfully allowed range" and was not ambiguous because "the exact number of years was stated clearly on the record." As to the amendment of his time credit, the court determined that Braggs had been "incarcerated in CR20160666 from February 2, 2016, to May 6, 2016, for a total [of] ninety-four (94) days, which was before the offense dates listed for CR20181925." The court therefore reasoned that the "ninety-four (94) days [Braggs] was incarcerated prior to November 1, 2016, cannot be applied to CR20181925."
¶6 Thereafter, Braggs apparently sent the trial court a letter, which it treated as a motion for reconsideration. The court denied that motion in August 2022, again explaining that "the sentences in both matters were lawful and lawfully imposed" and that "the time credits were correctly calculated and applied in each matter respectively." This petition for review followed.
¶7 Braggs now asks this court to review the trial court's June 2022 and August 2022 rulings. He briefly repeats his claims that the sentence in CR20160666 was ambiguous and that he is entitled to additional presentence incarceration credit. However, he fails to explain how the trial court erred in rejecting his claims. See Ariz. R. Crim. P. 32.16(c)(2)(D) (petition for review must include "reasons why the appellate court should grant the petition"), Ariz. R. Crim. P. 33.16(c)(2)(D) (same). In addition, he does not provide any citation to legal authority or the record. See Ariz. R. Crim. P. 32.16(c)(2)(C)-(D) (petition for review must include references to 3 record and citations to supporting legal authority), Ariz. R. Crim. P. 33.16(c)(2)(C)-(D) (same). Braggs's failure to comply with our rules of post-conviction relief and to present any legal argument justifies our summary refusal to grant review. See Ariz. R. Crim. P. 32.16(k) (appellate review discretionary), Ariz. R. Crim. P. 33.16(k) (same); see also State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (insufficient argument waives claim on review); State v. French, 198 Ariz. 119, ¶ 9 (App. 2000) (summarily rejecting claims not complying with rules governing form and content of petitions for review), disapproved on other grounds by Stewart v. Smith, 202 Ariz. 446, ¶ 10 (2002).
To the extent Braggs attempts to raise a new claim that he did not present to the trial court, we will not address it for the first time on review. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980).
¶8 Accordingly, we deny review. 4