Opinion
2 CA-CR 2013-0131-PR
07-31-2013
THE STATE OF ARIZONA, Respondent, v. JEFFERY S. DAVIS, Petitioner.
Jeffery S. Davis In Propria Persona
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF GREENLEE COUNTY
Cause No. CR201000042
Honorable Donna J. Grimsley, Judge
REVIEW GRANTED; RELIEF DENIED
Jeffery S. Davis Florence
In Propria Persona
KELLY, Presiding Judge. ¶1 In this petition for review, petitioner Jeffery Davis seeks review of the trial court's order denying his request to file a delayed petition for post-conviction relief pursuant to Rule 32.1(f), Ariz. R. Crim. P. Under that rule, a post-conviction relief proceeding is permitted when a defendant's failure to file an of-right notice of post- conviction relief within the prescribed time was "without fault on the defendant's part." "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We find no such abuse here. ¶2 In December 2010, Davis entered a plea of no contest to sexual conduct with a minor and attempted molestation of a child, both dangerous crimes against children. In February 2011, the trial court sentenced him to a presumptive, twenty-year term of imprisonment, to be followed by lifetime probation. Contemporaneously, Davis signed the customary form notice of post-conviction rights, which informed him he had ninety days from the entry of judgment and sentence in which to file a notice of post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P. See Ariz. R. Crim. P. 32.4(a) (notice of post-conviction relief in noncapital case "must be filed within ninety days after the entry of judgment and sentence"). ¶3 In September 2012, Davis filed a pro se notice of post-conviction relief, followed a few months later by a "Motion for Delayed Rule 32 and Notice of Reasons for Untimely Submission of Rule 32" filed by appointed counsel, arguing Davis was not at fault for the late filing due to his trial counsel's failure to follow his oral and written requests to file a notice of post-conviction relief. See Ariz. R. Crim. P. 32.1(f); 32.2(b) (claim pursuant to Rule 32.1(f) may be raised in successive or untimely notice of post-conviction relief). At an evidentiary hearing held in February 2013, at which Davis and his trial attorney Michael Peterson testified, the trial court denied his motion to file a delayed petition for post-conviction relief. The court concluded: "I do not find that Mr. Davis has met his burden to show that the filing of the Rule 32 petition late was without his own fault. It appears to me that . . . [Davis's] testimony lacks some credibility and that he's not met his burden." ¶4 Davis's notice of post-conviction relief and motion for permission to file a delayed Rule 32 petition, filed more than nineteen months after he was sentenced, were patently untimely, a fact he acknowledged at the evidentiary hearing. See Ariz. R. Crim. P. 32.4(a). In his pro se petition for review, Davis argues the trial court exercised "unprofessional conduct" by improperly denying his motion for leave to file a delayed Rule 32 petition. In addition, Davis appears to raise claims regarding ineffective assistance of trial counsel during the plea process, assert a claim of actual innocence, and ask for a "change of venue to Maricopa County." ¶5 At the evidentiary hearing, Davis testified he was aware of the ninety-day time limit in which to file a notice of post-conviction relief, and that Peterson had agreed to file a Rule 32 petition pursuant to his request at the sentencing hearing in February 2011. Davis further testified that, beginning in August 2011, he wrote six letters to Peterson to inquire about the status of the Rule 32 proceeding. He did not keep copies of the letters or document having mailed them, nor did he receive any response from Peterson to the letters. Although he knew the trial court's address, Davis did not contact the court when he did not hear from Peterson and, although he testified he wrote to his family to inquire about the status of his post-conviction proceeding, he "didn't bring [anything] with [him]" to the evidentiary hearing to prove he had done so. After meeting with attorneys from the "Justice Project" in the summer of 2012, Davis filed a notice of post-conviction relief in September 2012. ¶6 Peterson testified Davis never had spoken with him about filing a Rule 32 petition, and that he had not received any letters from Davis asking him to do so. Nor did Peterson recall Davis having asked him to pursue a Rule 32 claim at the sentencing hearing. Peterson never discarded any correspondence or documents he received from Davis. ¶7 In reviewing a trial court's ruling after an evidentiary hearing, we defer to that court with respect to its assessment of the witnesses' credibility and its resolution of any conflicts in the evidence. See State v. Sasak, 178 Ariz. 182, 186, 871 P.2d 729, 733 (App. 1993); State v. Fritz, 157 Ariz. 139, 141, 755 P.2d 444, 446 (App. 1988). We are mindful that the trial court "'is in the best position to evaluate credibility and accuracy, as well as draw inferences, [and] weigh, and balance'" the evidence presented at the evidentiary hearing. See State v. Hoskins, 199 Ariz. 127, ¶ 97, 14 P.3d 997, 1019 (2000), quoting State v. Bible, 175 Ariz. 549, 609, 858 P.2d 1152, 1212 (1993). Consequently, we do not reweigh the evidence. See Sasak, 178 Ariz. at 186, 871 P.2d at 733 (appellate court reviews evidence at post-conviction-relief hearing favorable to trial court's ruling and defers to trial court in resolving conflicts of evidence). Rather, "[w]e examine a trial court's findings of fact after an evidentiary hearing to determine if they are clearly erroneous." State v. Berryman, 178 Ariz. 617, 620, 875 P.2d 850, 853 (App. 1994). ¶8 Based on this record, we cannot say the trial court abused its discretion in denying Davis's motion to seek post-conviction relief more than one year after the time for doing so had expired, particularly in light of the conflicts in the evidence and the court's finding that it did not find Davis to be a credible witness. Accordingly, although we grant the petition for review, we deny relief.
On June 10, 2013, after Davis had filed his petition for review, this court ordered the Greenlee County Superior Court Clerk to forward Davis's change-of-plea transcript under supplemental certificate. On June 13, 2013, the clerk of the superior court certified that it would be unable to supply the transcript, explaining that, "[a]fter several attempts by our office and with the help of local IT Personnel; the retrieval of the audio recording of Mr. Davis's Change of Plea Hearing that took place on December 30, 2010 was unsuccessful." (emphasis omitted) This court thus deemed the record complete on June 18, 2013. In a supplement to his petition for review, Davis asks us to vacate our June 18 order, a request we deny. In any event, the arguments in Davis's supplemental petition for review seem to go to the merits of his claims of ineffective assistance of counsel, which the trial court did not address because it denied his request to file an untimely petition. Therefore, we likewise do not address those claims. See Ariz. R. Crim. P. 32.9(c) (aggrieved party may petition court for review only of actions of trial court).
Again, to the extent Davis asks us to address claims other than the trial court's denial of his motion to file a delayed Rule 32 petition—the only claim upon which the court ruled and thus the only claim before us on review—we will not do so. See Ariz. R. Crim. P. 32.9(c) (aggrieved party may petition court for review of actions of trial court).
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VIRGINIA C. KELLY, Presiding Judge
CONCURRING: _______________
PETER J. ECKERSTROM, Judge
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J. WILLIAM BRAMMER, JR., Judge
A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Order filed December 12, 2012.
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