Opinion
2 CA-CR 2023-0250-PR
03-26-2024
The State of Arizona, Respondent, v. Abelardo Chaparro, Petitioner.
Abelardo Chaparro, Apache Junction 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. CR1995005120 The Honorable Scott Minder, Judge REVIEW GRANTED; RELIEF DENIED
Abelardo Chaparro, Apache Junction
In Propria Persona
Judge O'Neil authored the decision of the Court, in which Vice Chief Judge Staring and Judge Sklar concurred.
MEMORANDUM DECISION
O'NEIL, JUDGE:
¶1 Petitioner Abelardo Chaparro seeks review of the trial court's ruling summarily dismissing his successive 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. State v. Martinez, 226 Ariz. 464, ¶ 6 (App. 2011). Chaparro has not met his burden of establishing such abuse here.
¶2 After a jury trial, Chaparro was convicted of first-degree murder. The trial court sentenced him to natural-life imprisonment without the possibility of parole for twenty-five years. In addition to referencing the possibility of parole, the court ordered that Chaparro "shall serve one day for every seven days of the sentence imposed under the supervision of the Community Supervision Program, to be served consecutively to the actual period of imprisonment." His conviction and sentence were affirmed on appeal. State v. Chaparro, No. 1 CA-CR 96-0726 (Ariz. App. July 31, 1997) (mem. decision). Thereafter, Chaparro sought post-conviction relief numerous times. See State v. Chaparro, No. 1 CA-CR 17-0146 PRPC (Ariz. App. Jan. 4, 2018) (mem. decision); State v. Chaparro, No. 1 CA-CR 17-0163 PRPC (Ariz. App. Jan. 4, 2018) (mem. decision); State v. Chaparro, No. 1 CA-CR 13-0644 PRPC (Ariz. App. Sept. 24, 2015) (mem. decision); State v. Chaparro, No. 1 CA-CR 01-0522 PR (Ariz. App. Mar. 19, 2002) (decision order); State v. Chaparro, No. 1 CA-CR 99-0376-PR (Ariz. App. Apr. 20, 2000) (decision order).
¶3 In 2020, the Arizona Supreme Court determined that Chaparro was eligible for parole after serving twenty-five years' imprisonment despite A.R.S. § 41-1604.09, which prohibits parole for persons convicted of offenses occurring on or after January 1, 1994. Chaparro v. Shinn, 248 Ariz. 138, ¶¶ 2-3, 23 (2020). Although the reference to both "parole" and "community supervision" created ambiguity, the court concluded that the sentence was intended to allow the possibility of parole. Id. ¶ 17. The court explained that Chaparro's "illegally lenient sentence must stand" because the state had failed to appeal the sentencing order. Id. ¶ 21.
¶4 In May 2023, Chaparro filed a motion for clarification of sentence. He asserted that he had been on parole for nearly three years and that the Arizona Board of Executive Clemency had denied his application for absolute discharge. In August 2023, the trial court denied the motion, explaining that the Board "has discretion over these issues, not the Court." Chaparro attempted to appeal that order, but his appeal was dismissed because the order was not appealable. State v. Chaparro, No. 1 CA-CR 23-0360 (Ariz. App. Aug. 28, 2023) (order).
¶5 In October 2023, Chaparro filed the current notice of and petition for post-conviction relief, citing Rule 32.1(d). He argued that he had been on parole for more than three years and that he "will be serving a sentence beyond" what had been imposed. He reasoned that the "sentencing judge here understood the community supervision provision to set the absolute discharge date for parole" by ordering him to serve community supervision equal to one day for every seven days of his prison sentence.
¶6 The following month, the trial court summarily dismissed Chaparro's petition. In doing so, the court characterized his Rule 32.1(d) claim as successive because he had "previously raised a version of this claim." The court explained that, under A.R.S. § 31-411(D), Chaparro must remain on parole until the Board grants him an absolute discharge and that the Board has sole discretion to do so. According to the court, "The fact that the sentencing Court included a formula for community supervision does not change the result." The court further noted that Chaparro had challenged his conviction and sentence as violating his Fifth and Fourteenth Amendment rights, which the court characterized as Rule 32.1(a) claims. However, because Chaparro had failed "to allege any basis for relief independent of his Rule 32.1(d) arguments," the court concluded his Rule 32.1(a) claims failed as well. This petition for review followed.
¶7 On review, Chaparro reasserts his Rule 32.1(d) claim. He contends the trial court erred in characterizing his claim as "successive" because he has "never previously" filed a claim under Rule 32.1(d) and his motion for clarification of sentence cannot be construed as such. Even assuming Chaparro is correct on this point, however, we cannot say the court abused its discretion.
Chaparro also mentions his Fifth and Fourteenth Amendment rights, as he did in his petition below. However, we do not understand this to be a standalone claim separate from his Rule 32.1(d) claim. We therefore do not address it.
¶8 Although the trial court noted that Chaparro's claim was successive, it nonetheless considered the merits of his argument. As the court pointed out, § 31-411(D) provides that a "prisoner shall remain on parole unless the board revokes the parole or grants an absolute discharge from parole or until the prisoner reaches the individual earned release credit date pursuant to [A.R.S.] § 41-1604.10." (Emphasis added.) It is not the function of this court to discharge a defendant from parole. See State v. Wagstaff, 164 Ariz. 485, 489 (1990) (parole decisions traditionally not part of judicial process); cf. State v. Rosario, 195 Ariz. 264, ¶ 27 (App. 1999) ("Release eligibility is not the court's decision.").
¶9 Moreover, as our supreme court has explained, "community supervision does not apply to a parole eligible inmate." Chaparro, 248 Ariz. 138, ¶ 12. Because Chaparro was placed on parole, not community supervision, he is subject to the statutory requirements governing parole. Parole and community supervision are not synonymous and cannot apply to the same offense. See id. ¶¶ 10, 12, 17 ("Chaparro's sentence is ambiguous because it refers both to 'parole,' which was abrogated before the conduct that resulted in his conviction, and to 'community supervision,' which applied to all qualifying offenses committed on or after January 1, 1994."). In concluding that Chaparro was eligible for parole, the supreme court necessarily also determined that he was not eligible for community supervision. See id. ¶¶ 12, 17. Chaparro's argument that the sentencing court's order for community supervision controls the length of his parole is therefore without merit.
¶10 The length of Chaparro's parole is governed by the statutes applicable to parole. See A.R.S. §§ 31-402(A) (Board has "exclusive power to pass on and recommend . . . paroles"), 31-402(C) (noting Board has same power with regard to "persons who committed felony offenses on or after January 1, 1994"), 31-411(D) (length of parole determined by Board or "earned release credit date"), 31-412(A) (Board has "sole discretion" to authorize "release of the applicant on parole"). Thus, the trial court did not err in summarily dismissing Chaparro's petition, see Martinez, 226 Ariz. 464, ¶ 6, even assuming his claim were cognizable under Rule 32.1(d), see Ariz. R. Crim. P. 32.1(d) cmt. ("This provision is intended to include claims such as miscalculation of sentence or computation of sentence credits that result in the defendant remaining in custody when he or she should be free.").
¶11 Accordingly, we grant review but deny relief.