Opinion
2 CA-CR 2023-0135-PR
06-27-2023
The State of Arizona, Respondent, v. Robert John Flores, Petitioner.
Robert J. Flores, Kingman 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. CR2014001368001DT The Honorable Joan M. Sinclair, Judge
Robert J. Flores, Kingman In Propria Persona
Judge Gard authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Vasquez concurred.
MEMORANDUM DECISION
GARD, JUDGE
¶1 Robert Flores seeks review of the trial court's ruling summarily dismissing his notice of post-conviction relief, filed pursuant to Rule 33, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Martinez, 226 Ariz. 464, ¶ 6 (App. 2011). Flores has not met his burden of establishing such abuse here.
¶2 Pursuant to a 2016 plea agreement, Flores was convicted of sexual abuse of a minor under the age of fifteen, a dangerous crime against children. The trial court suspended the imposition of sentence and placed Flores on lifetime probation. In 2021, however, the court found Flores had violated the conditions of his probation and imposed a five-year prison term.
¶3 In August 2022, Flores filed a notice of post-conviction relief, asserting claims under Rule 33.1(b), (c), and (f). He cited State v. Reed, 252 Ariz. 236 (App. 2021), and argued that his claims were "exempt from preclusion." The following month, the trial court summarily dismissed Flores's notice, explaining that it was untimely and that Flores had failed to provide "any information or reason as to why he delayed filing." The court further explained that, contrary to Flores's suggestion, it had subject matter jurisdiction over his case and his sentence was "consistent with the plea agreement." See Ariz. R. Crim. P. 33.1(b), (c). The court also denied Flores's subsequent motion for reconsideration.
¶4 In October 2022, Flores filed a second notice of post-conviction relief, again citing Rule 33.1(b), (c), and (f). He maintained that A.R.S. § 13-902(E), which allows the trial court to impose probation, "was never cited or alleged in the plea agreement." He therefore seemed to reason that the court lacked jurisdiction to impose lifetime probation. Flores again asserted that his claim was not "time-barred" based on Reed.
Flores also asserted, without further explanation, that A.R.S. § 13604.01 "is inoperable by itself-providing no cognizable legislative vehicle for its application." That section was renumbered as A.R.S. § 13-705, which governs dangerous crimes against children. See 2008 Ariz. Sess. Laws, ch. 301, § 17. Pursuant to the plea agreement, Flores admitted to having committed such a crime.
¶5 In January 2023, the trial court summarily dismissed Flores's notice. The court explained that, "[a]s noted in the prior ruling," it had jurisdiction to hear the case. The court further observed that Flores had "already contested the legality of his sentence in the first Rule 33 proceeding and was unsuccessful." In any event, the court pointed out that § 13-902(E) permitted it to impose probation for offenses listed in chapter 14, which included sexual abuse under A.R.S. § 13-1404, and that § 13-1404 had been "cited in the sentencing order and the plea agreement." This petition for review followed.
¶6 On review, Flores contends the trial court erred by summarily dismissing his notice because he "listed the specific exception" in Reed. He maintains that he is allowed to file a Rule 33 petition "based upon a clearly unconstitutional sentence."
¶7 To the extent Flores challenges the trial court's dismissal of his first Rule 33 notice or its denial of his motion for reconsideration of that ruling, this petition for review is untimely. See Ariz. R. Crim. P. 33.16(a)(1) (aggrieved party may petition for review "[n]o later than 30 days after the entry of the trial court's final decision on a petition or a motion for rehearing, or the dismissal of a notice"). Although Flores's petition for review is timely as to the second notice's dismissal, he raised the same claims in both the first and second proceedings. A defendant is precluded from relief based on any ground "finally adjudicated on the merits in any previous post-conviction proceeding." Ariz. R. Crim. P. 33.2(a)(2), (b)(1). But even assuming his claims were not precluded, his second Rule 33 notice was untimely.
¶8 "[W]hen a defendant raises a claim that falls under Rule 33.1(b) through (h) in a successive or untimely post-conviction notice, the defendant must explain the reasons for not raising the claim in a previous notice or petition, or for not raising the claim in a timely manner." Ariz. R. Crim. P. 33.2(b)(1); see also Ariz. R. Crim. P. 33.4(b)(3)(B) (defendant must file notice for claim under Rule 33.1(b) through (h) within reasonable time after discovering basis for claim). "If the notice does not provide sufficient reasons why the defendant did not raise the claim in a previous notice or petition, or in a timely manner, the court may summarily dismiss the notice." Ariz. R. Crim. P. 33.2(b)(1).
¶9 Flores seems to suggest that his illegal sentence claim has been properly raised and is timely because he discovered its basis only after reading Reed. But Reed is inapposite.
¶10 In Reed, this court determined that "when a defendant pleads guilty to an offense not cognizable under Arizona law, an illegal-sentence claim under Rule 33.1(c) or actual-innocence claim under Rule 33.1(h) is not time-barred if there is no evidence presented beyond the mere passage of time to suggest unreasonable delay." 252 Ariz. 236, ¶ 15. There, the defendant pled guilty to "attempt to commit child abuse" as a class six felony, which had to be committed "recklessly" under A.R.S. § 13-3623(B)(2). Reed, 252 Ariz. 236, ¶ 8. But "attempt" is a specific intent crime. Id. ¶ 9. Accordingly, the court concluded the defendant had "pled guilty to an offense that is not a cognizable crime." Id. It determined that under such circumstances a claim of actual innocence or an illegal sentence is generally not time-barred. Id. ¶ 15.
¶11 Unlike the defendant in Reed, Flores pled guilty to sexual abuse of a minor under the age of fifteen, not an attempt thereof. Sexual abuse is proscribed by § 13-1404. As the trial court pointed out, that statute is listed in Flores's plea agreement and sentencing order. Because Reed is inapplicable, and Flores has not otherwise explained why he did not raise his claims sooner-in fact, he had raised them previously-his notice was subject to summary dismissal. See Ariz. R. Crim. P. 33.2(b)(1).
¶12 Moreover, as the trial court correctly explained, it had subject matter jurisdiction over Flores's case. See Ariz. Const. art. VI, § 14(4); State v. Fimbres, 222 Ariz. 293, ¶ 29 (App. 2009). And the sentence imposed was consistent with the plea agreement and authorized by law. See A.R.S. §§ 13-705(H), 13-1404(C), 13-902(E). Flores has pointed us to no authority suggesting otherwise. See Ariz. R. Crim. P. 33.16(c)(4) (failing to raise issue in petition for review constitutes waiver of appellate review of that issue). We therefore cannot say the court abused its discretion in dismissing Flores's notice. See Martinez, 226 Ariz. 464, ¶ 6.
¶13 Accordingly, we grant review but deny relief.