Opinion
No. 2 CA-CR 2017-0358-PR
02-21-2018
THE STATE OF ARIZONA, Respondent, v. LORENZO LEON BROWN, Petitioner.
Lorenzo Brown, Tucson 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NOT FOR PUBLICATION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 Maricopa County
No. CR2009143997001DT
The Honorable Christine E. Mulleneaux, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
Lorenzo Brown, Tucson
In Propria Persona
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred. BREARCLIFFE, Judge:
¶1 Lorenzo Brown seeks review of the trial court's ruling denying his "petition for post-conviction relief." See Ariz. R. Crim. P. 32. We will not disturb that order unless the court clearly abused its discretion. State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Brown has not met his burden of establishing such abuse here.
We treat Brown's "Opening Brief" as a petition for review filed pursuant to Rule 32, Ariz. R. Crim. P. Although Brown has not included a copy of or identified the ruling from which he seeks review and has not clearly referred to the pleading upon which the trial court ruled, we infer from the record he is challenging the court's February 16, 2017 minute entry ruling which appears to have been issued in response to the pleading he filed on February 2, 2017. We further note we have not found, in the record before us on review, a notice of post-conviction relief initiating the instant proceeding.
¶2 Pursuant to a guilty plea, Brown was convicted in 2009 of solicitation to commit possession of a dangerous drug for sale in cause number CR2009143997001DT. The trial court suspended the imposition of sentence and placed Brown on probation for three years. The court subsequently found Brown had violated the conditions of his probation and revoked his probation in 2014, sentencing him to a 2.5-year prison term with 654 days of presentence incarceration credit, to be served concurrently with the 2.5-year sentence in another probation violation matter, cause number CR2011138219001DT, and consecutively to the concurrent sentences in two other matters, the longer of which is twelve years.
Although Brown listed the cause numbers for all four matters in his petition for review, he only appears to be challenging the amount of presentence incarceration credit he received in cause number CR2009143997001DT.
¶3 On February 2, 2017, Brown filed a "motion" with the clerk of the trial court stating he was entitled to presentence incarceration credit for time he spent in jail in 2009 and 2011 related to cause number CR2009143997001DT, noting that the Arizona Department of Corrections (ADOC) did "not have the time in [CR2009143997001DT and CR2011138219001DT] running current" and that ADOC was unable to give him a release date in those cases. In his motion, Brown indicated he had previously requested the same relief from the court, to no avail. In its February 16, 2017 minute entry ruling, the court denied Brown's "request regarding presentence incarceration credit," noting "the defendant's sentences were run concurrent."
We take judicial notice that ADOC's website shows a sentence-expiration date of March 10, 2014 for CR2009143997001DT and November 9, 2014 for CR2011138219001DT. Arizona Department of Corrections, https://corrections.az.gov (last visited February 13, 2018).
Although the record before us does not appear to contain any Rule 32 proceedings in cause number CR2009143997001DT, it does contain previous motions in that matter.
¶4 On review, Brown asserts he did not receive 982 days of presentence incarceration credit to which he is entitled in CR2009143997001DT. In his petition, Brown refers to his prior efforts to resolve the perceived miscalculation, maintaining the "Superior Court and the Arizona Department of Corrections" have "failed to adequately resolve this issue." However, we need not address Brown's claim, which is patently untimely. To the extent he is challenging the sentence imposed in 2014 by asserting he was not given the amount of presentence incarceration credit to which he is entitled, we note that a claim that a sentence is improper must be raised pursuant to Rule 32.1(a) or (c), and can only be raised in a timely post-conviction proceeding. See Ariz. R. Crim. P. 32.4(a)(2)(C), (a)(2)(D). The time limits provided in Rule 32.4 are jurisdictional. See A.R.S. § 13-4234(G) (time limits for post-conviction relief are jurisdictional and "untimely filed notice or petition shall be dismissed with prejudice"); State v. Lopez, 234 Ariz. 513, ¶ 8 (App. 2014). In his pleading below and on review, Brown has not identified any claim that may be raised in an untimely proceeding. See Ariz. R. Crim. P. 32.4(a)(2)(A) (only claims under Rule 32.1(d) through (h) may be raised in notice filed after time limit). Cf. State v. Perez, 141 Ariz. 459 (1984) (appellate court will affirm trial court's ruling if legally correct for any reason).
Although it is not clear whether the trial court treated Brown's motion as a Rule 32 petition, as previously noted, we nonetheless have treated his "appeal" from the court's ruling related to that motion as a petition for review. In a related argument, Brown also asserts ADOC failed "to calculate correctly" 446 days "[h]e was granted credit for" by the trial court in another matter.
Rule 32 was recently amended. Because the changes do not affect our analysis, we cite the current version of the rule in this decision. See Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017).
We note that Brown is not raising a claim asserting he continues to be in custody after his sentence has expired pursuant to Rule 32.1(d), Ariz. R. Crim. P. Rather, he maintains he should be released in 2021 rather than 2023. --------
¶5 Accordingly, we grant review but deny relief.