Opinion
2 CA-CR 2021-0031-PR
06-11-2021
The State of Arizona, Respondent, v. Herman Lee Green Sr., Petitioner.
Kent P. Volkmer, Pinal County Attorney By Geraldine L. Roll, Deputy County Attorney, Florence Counsel for Respondent Herman L. Green Sr., 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 Not For Publication See Ariz.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. S1100CR201101869 The Honorable Joseph R. Georgini, Judge
Kent P. Volkmer, Pinal County Attorney By Geraldine L. Roll, Deputy County Attorney, Florence Counsel for Respondent
Herman L. Green Sr., Florence In Propria Persona
Vice Chief Judge Staring authored the decision of the Court, in which Presiding Judge Espinosa and Chief Judge Vásquez concurred.
MEMORANDUM DECISION
STARING, VICE CHIEF JUDGE:
¶1 Herman Green Sr. seeks review of the trial court's ruling denying his motion to quash, which the court seemingly treated as a petition for post-conviction relief, filed pursuant to Rule 32, 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). Green has not met his burden of establishing such abuse here.
¶2 After a jury trial, Green was convicted of forty-one felony offenses involving acts of sexual and physical abuse. The trial court sentenced him to consecutive prison terms, including six life sentences. This court affirmed his convictions and sentences on appeal. State v. Green, No. 2 CA-CR 2012-0262 (Ariz. App. Sept. 30, 2013) (mem. decision).
¶3 Green sought post-conviction relief, and in October 2016, the trial court dismissed his petition. This court dismissed his petition for review as untimely. State v. Green, No. 2 CA-CR 2017-0041-PR (Ariz. App. Mar. 3, 2017) (order). In 2018, Green filed several motions, including requests for DNA testing, allegations of constitutional violations, and a claim of newly discovered evidence. After the trial court denied those motions, Green sought special action relief. This court declined to accept jurisdiction. Green v. State, No. 2 CA-SA 2018-0075 (Ariz. App. Oct. 17, 2018) (order).
¶4 In September 2020, Green filed a motion to quash his convictions and sentences, in which he appeared to argue the trial court "lacked [jurisdiction to adjudicate his case" because his indictment had cited A.R.S. § 13-1410, the child molestation statute, which he asserted was unconstitutional. He also contended the DNA evidence presented at trial "did not support probable cause for the charged offenses." In response, the state maintained the trial court was required, pursuant to Rule 32.3(b), to treat Green's motion as a petition for post-conviction relief. And given that Green had "provided no explanation . . . for the untimely raising of his claims," the state reasoned that they were precluded. Even assuming his claims were not precluded, however, the state asserted that his petition should be dismissed. It argued that § 13-1410 was constitutional, that Green's indictment "correctly recited the statute's language" and "properly conferred subject matter jurisdiction," and that "[t]here was nothing inconclusive about the DNA evidence against Green."
Section 13-1410(a) provides: "A person commits molestation of a child by intentionally or knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with the female breast, with a child who is under fifteen years of age."
¶5 Green attempted to file a reply and a supplemental brief, as well as an "Emergency Motion for Relief from Covid-19," but they were all returned for failing to comply with procedural rules. In February 2021, Green filed a "Motion for Status of Defendant's Filed Supplemental Brief and Defendant's Post-Trial Motion." Shortly thereafter, the trial court denied Green's motion to quash and took no action on his other attempted filings. This petition for review followed.
¶6 On review, Green does not dispute the trial court's treatment of his motion as a petition for post-conviction relief. Instead, he seems to challenge the sufficiency of the ruling, arguing that the court failed to "explain [its] denial." But in post-conviction proceedings, the court is entitled to summarily dismiss precluded and untimely claims, as well as those that fail to present a material issue of fact or law that would entitle the defendant to relief. Compare Ariz. R. Crim. P. 32.2(b), 32.11(a) (discussing summary dismissal), with Ariz. R. Crim. P. 32.13(d)(1) (requiring specific findings of fact and conclusions of law after evidentiary hearing).
¶7 Green also re-raises his argument that the trial court lacked subject-matter jurisdiction over his case because § 13-1410 is unconstitutional. This argument appears to be grounded in Rule 32.1(b)-that is, "the court did not have subject matter jurisdiction to render a judgment or to impose a sentence on the defendant." But when a defendant raises such a claim in a successive or untimely proceeding, "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. 32.2(b). "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." Id.
¶8 Neither below nor on review has Green offered any explanation for not raising his claim previously. Instead, he maintains that "jurisdiction may be challenged at any time." But Green misses the point. Although jurisdiction may generally be raised at any time, see Ariz. R. Crim. P. 16.1(b), a petitioner in a post-conviction proceeding still has the burden of showing why such a claim was not raised previously or in a timely fashion, see Ariz. R. Crim. P. 32.2(b). Because Green failed to do so, the trial court did not abuse its discretion in summarily dismissing this claim.
¶9 Even assuming Green's jurisdictional claim was properly raised, however, he is not entitled to relief. First, Green has failed to explain on review why § 13-1410 is unconstitutional. See Ariz. R. Crim. P. 32.16(c)(2)(D) (petition for review must include reasons why appellate court should grant petition, including citations to legal authority); State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (failure to cite relevant authority and meaningfully develop argument waives claim on review). Below, he argued "a legislative drafting error . . . 'eliminated' sexual intent as an element of the offense." But our supreme court has recently determined that this statutory scheme insofar as it requires defendants to disprove sexual motivation does not violate due process. See State v. Holle, 240 Ariz. 300, ¶¶ 17-19, 40-44, 50 (2016); see also State v. Smyers, 207 Ariz. 314, n.4 (2004) ("The courts of this state are bound by the decisions of [our supreme] court and do not have the authority to modify or disregard [its] rulings.").
¶10 The trial court had subject matter jurisdiction over Green's criminal case. See Ariz. Const. art. VI, § 14(4) (superior court shall have jurisdiction in criminal cases amounting to felony); see also A.R.S. §§ 13-1204(E) (aggravated assault is felony), 13-1404(C) (sex abuse is felony), 13-1405(B) (sexual conduct with minor is felony), 13-1410(B) (child molestation is felony), 13-3623(A), (B) (child abuse is felony). And to the extent that Green's argument is directed at what he perceives as a faulty indictment, errors in an indictment are not jurisdictional. See State v. Maldonado, 223 Ariz. 309, ¶ 13 (2010).
¶11 Green also reasserts his claim that the DNA evidence presented at trial did not support his convictions. To the extent this claim arises under Rule 32.1(a), it is precluded. See Ariz. R. Crim. P. 32.2(a). And to the extent it is a claim of actual innocence under Rule 32.1(h), Green has again failed to "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. 32.2(b). Notably, Green has raised DNA issues several times before. The trial court therefore did not err in summarily dismissing this claim.
Green challenges the state's response to his DNA argument below, contending that "[e]ach time the narrative is different." He asserts that in its response to his 2016 petition for post-conviction relief, the state argued "the DNA evidence was inconclusive to support any findings to connect the petitioner to any of the crimes," while in its response in this proceeding, the state urged that the DNA evidence was "sufficient to establish guilt." But Green did not raise this argument below in a properly filed pleading, and we do not address it for the first time on review. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980); see also Ariz. R. Crim. P. 32.16(c)(2)(B) (appellate court reviews issues presented to trial court).
¶12 We thus grant review but deny relief.