Opinion
2 CA-CR 2023-0021-PR
04-12-2023
The State of Arizona, Respondent, v. Richard Lee Fender, Petitioner.
Matthew J. Smith, Mohave County Attorney By Rod Gilleo, Deputy County Attorney, Kingman Counsel for Respondent Richard Lee Fender, Tucson In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Mohave County No. CR201700603 The Honorable Billy K. Sipe Jr., Judge Pro Tempore
Matthew J. Smith, Mohave County Attorney
By Rod Gilleo, Deputy County Attorney, Kingman
Counsel for Respondent
Richard Lee Fender, Tucson
In Propria Persona
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Kelly concurred.
MEMORANDUM DECISION
ECKERSTROM, Judge:
¶1 Petitioner Richard Fender seeks review of the trial court's order dismissing his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Ainsworth, 250 Ariz. 457, ¶ 1 (App. 2021) (quoting State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007)). Fender has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, partially in absentia, Fender was convicted of transportation of a dangerous drug for sale and possession of dangerous drugs for sale. The trial court sentenced him to concurrent, seven-year prison terms. This court vacated his possession conviction on appeal, concluding it violated the prohibition against double jeopardy. State v. Fender, No. 1 CA-CR 19-0586, ¶ 10 (Ariz. App. Oct. 22, 2020) (mem. decision). We affirmed the conviction and sentence for transportation of dangerous drugs for sale. Id. ¶ 27.
¶3 Fender sought post-conviction relief, and appointed counsel filed a notice stating she had reviewed the record and could "find no colorable claims pursuant to Rule 32." In a pro se, supplemental petition, however, Fender argued he had received ineffective assistance of trial counsel based on counsel's having failed "to conduct a reasonable pretrial investigation," to file certain pretrial motions, and to present certain evidence. He also argued that counsel had prejudicially failed to seek a lesser-included offense jury instruction. The trial court summarily denied relief on February 18, 2022.
¶4 Fender thereafter filed a statement that he had not timely received the state's response to his petition. In an order filed February 25, the trial court noted it had already ruled, but stated it would reconsider its decision upon receipt of Fender's reply, giving him until March 2 to file it, as he had requested. In a motion for an extension of time signed March 3, Fender asserted he had been "precluded from filing his reply" and requested additional time in which to file a petition for review. The court affirmed its earlier decision but granted Fender multiple additional extensions of time to file his petition for review.
¶5 In that petition, Fender first argues the trial court abused its discretion by "denying [him] his right to reply to the State's response." The state filed its response on January 31, 2022. Fender stated that he had received the response on February 15, "due to the fact that the State mailed it to the wrong address." The court ruled on his petition on February 18. In its decision, the court noted that the time for Fender to file a reply had passed. In a motion to dismiss filed the same date, Fender informed the court he had not received the response. In a letter to the court signed on February 16 and filed on February 25, Fender acknowledged receipt of the response and stated he would file his reply by March 2. As discussed above, the court set the requested date as the due date for the reply. Fender argues the court thereby violated Rule 32.9(b).
¶6 Rule 32.9(b) provides fifteen days from the date of service for a reply to be filed. In the case of a document that is mailed, service "is complete upon mailing." Ariz. R. Crim. P. 1.7(c)(2). The state's response indicated a copy had been sent to Fender on the date of filing. Although Rule 1.7(b)(4) makes separate provisions for the filing of documents by incarcerated defendants, it did not apply in this circumstance. Thus, to the trial court's knowledge at the time of its ruling, the fifteen days had passed. When it received Fender's filings stating he had not timely received the response, the court granted him the time he had requested in which to file his reply. It was not until after that date that Fender filed anything more, at that time asking for an extension of time to file his petition for review. On these facts, we cannot say the court violated the rule. The court waited more than fifteen days after the mailing of the response to rule, and, when notified Fender had not received the response, it allowed additional time for a reply. In doing so, the court granted Fender the time he himself requested for the filing of the reply. Fender simply failed to timely file the reply or request a further extension of time for its filing, instead choosing to seek an extension of time for his petition for review.
¶7 As to the merits of Fender's claims, we cannot say the trial court abused its discretion in denying the petition for post-conviction relief. The court clearly identified the claims Fender had raised and resolved them correctly in a thorough, well-reasoned ruling, which we adopt, subject to only a few exceptions. See State v. Whipple, 177 Ariz. 272, 274 (App. 1993) (when trial court has correctly ruled on issues raised "in a fashion that will allow any court in the future to understand the resolution[, n]o useful purpose would be served by this court rehashing the trial court's correct ruling in a written decision").
¶8 In that order, the trial court suggested Fender's claims of ineffective assistance of counsel were precluded because they had been either raisable or addressed on appeal. The court erred to the extent it so suggested. Although the substantive claim of admissibility is precluded, a related claim of ineffective assistance of counsel is not. See Ariz. R. Crim. P. 32.2(a); State ex rel. Thomas v. Rayes, 214 Ariz. 411, ¶ 20 (2007) (claims of ineffective assistance only raisable in post-conviction proceeding). Nonetheless, the court proceeded to correctly reject such claims on substantive grounds. It properly determined that trial counsel's decision to proceed without the lesser-included offense instruction was a strategic decision and correctly rejected it on that basis. See State v. Denz, 232 Ariz. 441, ¶ 7 (App. 2013).
¶9 We grant the petition for review, but deny relief.