Opinion
No. 1CA-CR 15-0313 PRPC
05-30-2017
STATE OF ARIZONA, Respondent, v. DUSTY LEE CONNER, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By E. Catherine Leisch Counsel for Respondent Dusty Lee Conner, Buckeye Petitioner
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2013-003371-001
No. CR2013-110063-001
The Honorable William L. Brotherton, Jr., Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Maricopa County Attorney's Office, Phoenix
By E. Catherine Leisch
Counsel for Respondent Dusty Lee Conner, Buckeye
Petitioner
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Kenton D. Jones joined. KESSLER, Judge:
¶1 Petitioner Dusty Lee Conner petitions this Court for review from the summary dismissal of his petition for post-conviction relief of-right. Conner pled guilty to three counts of burglary in the second degree. The superior court sentenced him to seven years' imprisonment for one count and three years' concurrent probation for the other two counts to begin after his imprisonment in the first count. For the reasons stated below, we accept review but deny relief.
¶2 In his petition for post-conviction relief, Conner argued his plea agreement was unconstitutional, his sentences were illegal, and he received ineffective assistance of counsel. The superior court dismissed the petition because Conner failed to state colorable claims for relief.
¶3 We agree that Conner's petition for post-conviction relief failed to state colorable claims. Conner first argued his plea agreement was unconstitutional because when he entered his guilty plea to burglary with one prior conviction the court did not tell him what the penalty would have been if he had pleaded guilty to burglary without the prior conviction. It is unclear why Conner insists this was necessary. Regardless, Conner pled guilty to non-repetitive second degree burglary at the same sentencing and was informed of the possible sentences for that crime. Therefore, Conner was made aware of the possible penalties without a prior conviction. Conner also asserted his plea was unconstitutional because he was not told he had a right to have a trial on his priors and a trial on his "release status." However, Conner signed the plea agreement which stated he agreed to judicial fact finding of aggravating or enhancing factors. Furthermore, the court advised Conner he was waiving his right to a jury trial on aggravating factors, which Conner indicated he understood.
¶4 Conner asserted his sentence was illegal because his probation was to date from May 7, 2014 but was not to commence until he was released from prison. This is not an illegal sentence. Conner's sentence was pronounced May 7, 2014 and his probation will begin upon his release from prison. Conner argues his sentence was illegal for the additional reason that the court did not state why it ordered consecutive sentences. However, Arizona Revised Statutes ("A.R.S.") section 13-711(A) requires that "the sentence or sentences imposed by the court shall run consecutively unless the court expressly directs otherwise, in which case the court shall set forth on the record the reason for its sentence." A.R.S. § 13-711(A) (2009). There is no requirement that the court explain consecutive sentences.
¶5 Conner asserts he received ineffective assistance of counsel because his counsel did not raise the above and did not move to suppress evidence as the result of an illegal stop. First, Conner's counsel did not render ineffective assistance for failing to raise the foregoing, see supra ¶¶ 3-4, because none of them represent a colorable claim for relief. Second, Conner expressly waived all defenses in his plea agreement, making the alleged illegal stop not a colorable claim. Finally, any ineffective assistance of counsel claims concerning preparation of the case before the guilty plea are waived. See State v. Quick, 177 Ariz. 314, 316 (App. 1993) (distinguishing between claims regarding "counsel who is ineffective in connection with matters directly relating to the entry of a guilty plea and allegedly deficient performance as to other aspects of the representation").
¶6 Conner also requests this Court find that he stated colorable claims, the judges below showed bias, the State violated a court order by filing late, and his constitutional rights were violated. We deny relief on these issues as failing to state colorable claims.
¶7 Conner's allegations of judicial bias, violation of a court order, and violation of his constitutional rights all relate to the State's late response to his petition for post-conviction relief. Conner argues the superior court erred when it granted the State more time to file a response to the petition for post-conviction relief and when it considered the State's late response. We deny relief on this issue because it is not a ground for relief under Arizona Rule of Criminal Procedure 32.1, a court has discretion to consider late motions, State v. Vincent, 147 Ariz. 6, 8 (App. 1985) (citations omitted), and judicial rulings alone do not support a finding of bias or partiality, Stagecoach Trails MHC, L.L.C. v. City of Benson, 232 Ariz. 562, 568, ¶ 21 (App. 2013) (citations omitted).
¶8 Conner's final ground for review—that he generally stated colorable claims for relief below—must fail. A petition for review must set forth specific claims, present sufficient argument supported by legal authority, and include citation to the record. The petition may not incorporate by reference any issue or argument. See Ariz. R. Crim. P. 32.9(c)(1)(iv) (petition must contain "[t]he reasons why the petition should be granted" and either an appendix or "specific references to the record," but "shall not incorporate any document by reference, except the appendices"); Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition must state "the issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review"); State v. Rodriguez, 227 Ariz. 58, 61 n.4, ¶ 12 (App. 2010) (citation omitted) (declining to address argument not presented in petition for review). Because Conner does not provide any substantive legal argument, does not apply any legal authority to any facts, and does not cite any relevant portion of the record to support these claims, he has failed to present colorable claims.
¶9 For the reasons stated above, we grant review but deny relief.
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