Opinion
No. 2 CA-CR 2018-0302-PR
02-20-2019
THE STATE OF ARIZONA, Respondent, v. BILLY JOE GOTHARD, Petitioner.
COUNSEL Kent P. Volkmer, Pinal County Attorney By Thomas C. McDermott, Appellate Bureau Chief, Florence Counsel for Respondent Billy J. Gothard, Florence In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Pinal County
No. S1100CR200100351
The Honorable Patrick K. Gard, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Kent P. Volkmer, Pinal County Attorney
By Thomas C. McDermott, Appellate Bureau Chief, Florence
Counsel for Respondent
Billy J. Gothard, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Judge Vásquez concurred.
BREARCLIFFE, Judge:
¶1 In this petition for review, Billy Gothard contends the trial court erred by dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., in which he challenged the ten-year prison term the court imposed after it revoked the lifetime term of probation for attempted molestation of a child. Relying on State v. Gonzalez, 162 Ariz. 11 (App. 2007), Gothard argued as he does on review that he was erroneously sentenced pursuant to the sentencing statute applicable to dangerous crimes against children. Because Gothard has not established the court abused its discretion, we grant review but deny relief. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015).
¶2 Based on offenses that occurred in May and September 1999, Gothard was charged with two counts of child molestation, and two counts of sexual conduct with a minor, all dangerous crimes against children. He pleaded guilty in July 2001 to two amended counts of attempted molestation of a child under the age of fifteen, class three, dangerous crimes against children. The agreement provided that probation would not be available for one of the counts but up to lifetime probation was available on the other count. The trial court sentenced Gothard in August 2001 to an aggravated prison term of twelve years followed by a lifetime term of probation.
¶3 Released on the first offense sometime in 2011, Gothard began his probationary term. After he admitted certain allegations in a December 2016 petition to revoke probation, the trial court revoked probation and sentenced him in January 2017 to the presumptive term of ten years' imprisonment for this class three, dangerous crime against children under former A.R.S. § 13-604.01(D) and (I), see 1999 Ariz. Sess. Laws, ch. 261, § 6, renumbered in 2009 as A.R.S. § 13-705, 2008 Ariz. Sess. Laws, ch. 301, §§ 17, 29, eff. Jan. 1, 2009. Gothard filed a pro se notice of post-conviction relief almost a year later, asserting a claim under Rule 32.1(c), stating the ten-year prison term is not in accordance with the law because attempted child
molestation was not listed in the sentencing statute as a dangerous crime against children. He also cited Rule 32.1(g) as a basis for relief, relying on Gonzalez and characterizing it as a significant change in the law.
¶4 In the petition for post-conviction relief filed by appointed counsel, Gothard did not specify which subsection of Rule 32.1 his claim fell under but asserted the sentence was illegal under Gonzalez. In that case, this court found that, based on its plain language and due to an apparent oversight by the legislature, the statute did not apply to attempted sexual conduct with a minor under the age of twelve. Gonzalez, 216 Ariz. 11, ¶¶ 7-10. Gothard argued in his Rule 32 petition that the "logic of the Gonzalez decision applies here" because attempted molestation of a child was not included among the offenses subject to dangerous crime against children sentencing provisions.
¶5 The state argued in its response that Gothard's claim was untimely raised. See Ariz. R. Crim. P. 32.4. Relying on State v. Lopez, 234 Ariz. 513, ¶ 5 (App. 2014), the state asserted that Gothard could only raise claims under Rule 32.1(d), (e), (f), (g) or (h), and his claim fell under Rule 32.1(c). Additionally, relying on State v. Shrum, 220 Ariz. 115 (2009), the state asserted Gonzalez is not a significant change in the law for purposes of Rule 32.1(g). In his reply, Gothard argued for the first time that trial counsel had been ineffective for failing to object to the sentence in light of Gonzalez. He also reiterated that the sentence was illegal, adding that the error is fundamental and the claim should not be precluded. Agreeing with the state, the trial court found Gothard had failed to raise a claim under any of the subsections that are not subject to the time limits of Rule 32.4. The court dismissed the petition and this petition for review followed.
¶6 Gothard argues in his petition the sentence is unlawful under Gonzalez, the trial court lacked authority to impose it, and the error is fundamental and must be corrected. He also argues that his failure to raise the claim in a timely manner was through no fault of his own because he did not become aware of the error until the time limit of the rule had passed, adding that in his notice of post-conviction relief he had asserted a claim pursuant to Rule 32.1(f).
¶7 Gothard has not sustained his burden of establishing the trial court abused its discretion in summarily dismissing his petition for post-conviction relief. The court was correct that the claim fell under Rule 32.1(c) and is time-barred. See Ariz. R. Crim. P. 32.4(a)(2)(A); see also A.R.S. § 13-4234(G) (time limits for filing a notice and petition for post-conviction relief
"are jurisdictional, and an untimely filed notice or petition shall be dismissed with prejudice"); Shrum, 220 Ariz. 115, ¶¶ 6-7, 13 (untimely claim of illegal sentence precluded); Lopez, 234 Ariz. 513, ¶ 8 (same).
¶8 To the extent Gothard is suggesting in his petition for review that the trial court lacked jurisdiction to impose the sentence because it was purportedly unlawful, that claim, which falls under Rule 32.1(b), is also time-barred. Moreover, it was not developed below and is, in any event, without merit. See State v. Bryant, 219 Ariz. 514, ¶¶ 14-17 (App. 2008) (illegal sentence is not error amounting to lack of subject matter jurisdiction). We similarly reject Gothard's related claim that this kind of error is fundamental and his suggestion that such error is not subject to the time limits of Rule 32.4. See Shrum, 220 Ariz. 115, ¶¶ 6-7; cf. State v. Swoopes, 216 Ariz. 390, ¶¶ 41-42 (App. 2007).
¶9 Finally, although Gothard did cite Rule 32.1(f) in his notice of post-conviction relief and stated it was through no fault of his own that the claim was untimely raised, he did not develop a claim pursuant to Rule 32.1(f) in his petition for post-conviction relief. He only argued the sentence is erroneous based on Gonzalez and should not be precluded because an illegal sentence is fundamental error. Similarly, although in his petition for review he faults trial counsel for not raising this issue at sentencing, Gothard did not raise a claim of ineffective assistance of counsel in his petition for post-conviction relief, only mentioning it summarily in his reply to the state's response. In any event, falling under Rule 32.1(a), that claim, too, was time-barred. See Ariz. R. Crim. P. 32.4(a)(2)(A); State v. Petty, 225 Ariz. 369, ¶ 11 (App. 2010) (ineffective assistance claims fall under Rule 32.1(a)). The trial court did not abuse its discretion by not acknowledging or addressing such a claim.
¶10 We grant the petition for review but deny relief.