Opinion
2 CA-CR 2024-0037-PR
07-12-2024
The State of Arizona, Respondent, v. Benny David Gibson, Petitioner.
Benny D. Gibson, Buckeye 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. CR2011141134002DT The Honorable Pamela Gates, Judge
Benny D. Gibson, Buckeye In Propria Persona
Vice Chief Judge Eppich authored the decision of the Court, in which Presiding Judge Sklar and Judge Brearcliffe concurred.
MEMORANDUM DECISION
EPPICH, Vice Chief Judge
¶1 Petitioner Benny Gibson seeks review of the superior court's ruling summarily dismissing his petition for writ of habeas corpus, which the court treated as a petition for post-conviction relief, pursuant to Rule 33, Ariz. R. Crim. P. We will not disturb that ruling absent an abuse of discretion. See State v. Mendoza, 249 Ariz. 180, ¶ 1 (App. 2020). Gibson has not met his burden of establishing such abuse here.
¶2 Pursuant to a plea agreement, Gibson was convicted of three counts of attempted child abuse. The superior court sentenced him to 7.5 years' imprisonment for one of the counts (count three) and suspended the imposition of sentence and placed Gibson on lifetime probation for the other two counts (counts one and eight). Gibson sought and was denied post-conviction relief.
¶3 In 2018, after Gibson had been released from prison and violated the terms of his probation, the superior court revoked his probation as to count one and sentenced him to a ten-year prison term. As to count eight, the court reinstated lifetime probation, commencing upon his new release from prison. This court affirmed the probation revocation on appeal, clarifying that count eight was for attempted child abuse. State v. Gibson, No. 1 CA-CR 18-0859 (Ariz. App. Dec. 26, 2019) (mem. decision). Gibson twice sought and was denied post-conviction relief.
¶4 In December 2023, Gibson filed a petition for writ of habeas corpus. He argued, in part, that his prison sentence was "illegal" because the probation department not the superior court had jurisdiction over the matter. He also asserted that "the court did not permit the probation department to hold the mandatory hearings," that his due process rights had been violated, and that his bail had been "excessive." With his petition, Gibson also requested copies of the court record.
¶5 In January 2024, the superior court issued its ruling, treating Gibson's petition for writ of habeas corpus as a petition for post-conviction relief and noting that this was his fourth Rule 33 proceeding. The court determined that it had subject matter jurisdiction over Gibson's case and that "[t]he power to determine probation lies squarely within the judiciary's authority." The court further explained that Gibson's due process and excessive bail claims were raised in previous Rule 33 proceedings and were therefore precluded and that Gibson had waived all non-jurisdictional defects by pleading guilty. Because Gibson had "failed to state a claim for which relief can be granted in a successive Rule 33 proceeding," the court dismissed the proceeding and denied his request for the court record. This petition for review followed.
¶6 On review, Gibson repeats his claim that the superior court lacked jurisdiction when "conducting a court proceeding and imposing a sentence over a technical probation violation without any type of crime, criminal activities, no new charges or any violation of the law." He maintains that "the probation department has its own jurisdictional community" to impose sanctions on "minor or technical probation violations." He therefore reasons that the "whole process was defective," rendering his sentence void.
¶7 Probation decisions-including whether a violation of a condition of probation has occurred-lie "solidly within the scope of the judiciary's authority." State v. Lyons, 167 Ariz. 15, 16-17 (1990). When a court determines that a probation violation has occurred, it may revoke, modify, or continue the probation. Id. at 17; see also Ariz. R. Crim. P. 27.8 (rules for probation-revocation proceeding). A probation violation stems from the original offense for which probation was imposed, and if probation is revoked, the sentence imposed is punishment for that offense. See Reed-Kaliher v. Hoggatt, 237 Ariz. 119, ¶ 10 (2015) (probation is privilege; revocation of probation is penalty); Lyons, 167 Ariz. at 17 (upon revocation, court may impose any sentence it originally could have imposed). It is therefore this original offense upon which the court's jurisdiction is based.
¶8 The superior court had jurisdiction to adjudicate Gibson's three counts of attempted child abuse. See Ariz. Const. art. VI, § 14 (superior court has jurisdiction over felony cases); A.R.S. § 12-123(A) (superior court has original jurisdiction as conferred by Arizona Constitution); see also A.R.S. §§ 13-1001(C) (classifying attempt), 13-3623(A) (classifying child abuse). Indeed, Gibson does not appear to challenge this point. Because the court had jurisdiction, it did not abuse its discretion in summarily dismissing Gibson's petition. See Mendoza, 249 Ariz. 180, ¶ 1.
We do not address Gibson's separate claims that he has not meaningfully asserted on review. See Ariz. R. Crim. P. 33.16(c)(4) ("A party's failure to raise any issue that could be raised in the petition for review or cross-petition for review constitutes a waiver of appellate review of that issue."). And because the superior court did not err in dismissing Gibson's petition, we also cannot say the court erred in denying his related request for court records.
¶9 Accordingly, we grant review but deny relief.