Opinion
No. 2 CA-CR 2020-0108-PR
08-27-2020
THE STATE OF ARIZONA, Respondent, v. KEITHEN RAY HAROLD JR., Petitioner.
Keithen Harold, 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NOT FOR PUBLICATION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 Pima County
No. CR20112427001
The Honorable James E. Marner, Judge
REVIEW GRANTED; RELIEF DENIED
Keithen Harold, Florence
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Brearcliffe and Judge Eckerstrom concurred. STARING, Presiding Judge:
¶1 Petitioner Keithen Harold Jr. seeks review of the trial court's order summarily denying his petition for sentencing clarification, which it appears the court treated as a petition for post-conviction relief under Rule 32, Ariz. R. Crim. P. We review a court's denial of post-conviction relief for an abuse of discretion. State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). We find no such abuse here.
¶2 Following a jury trial, Harold was convicted of sexual assault and was sentenced in July 2012 to a 10.5-year prison term to be followed by community supervision. On appeal, we vacated an improper criminal restitution order but otherwise affirmed his conviction and sentence. State v. Harold, No. 2 CA-CR 2012-0316 (Ariz. App. Feb. 14, 2014) (mem. decision). And, we denied relief on Harold's petition for review of the trial court's summary dismissal of his first petition for post-conviction relief. State v. Harold, No. 2 CA-CR 2016-0146-PR (Ariz. App. Aug. 3, 2016) (mem. decision).
¶3 In April 2020, Harold filed a "Petition for Sentencing Clarification," asking the trial court to review and clarify his sentence "due to ADOC [the Arizona Department of Corrections] changing the sentence to flat time upon switching over to a new computer system" in November 2019. Harold asserted that requiring him to serve his full 10.5-year sentence followed by community supervision, see A.R.S. § 13-603(I), constitutes a "double sentence" in violation of his constitutional rights. He asked the court to order him released in July 2020, after which he would participate in community supervision until January 2022, or alternatively, require him to remain in prison until the full expiration of his sentence in January 2022, and then "quash the community supervision punishment." In its order dismissing Harold's petition, the court concluded that because community supervision "does not equate to imprisonment," the double jeopardy claim was "groundless"; Harold's claim that his sentence had been changed due to a new computer system at ADOC was unsubstantiated; and, his current release date in January 2022 was accurately calculated. See State v. Uriarte, 194 Ariz. 275, ¶ 28 (App. 1998) (community supervision is not equivalent to imprisonment). This petition for review followed.
Although Harold did not expressly file his petition below pursuant to Rule 32, his claim is arguably cognizable under Rule 32.1(c) (imposed sentence not authorized by law), and in fact, he asserts on review that his petition was submitted pursuant to Rule 32. We therefore treat the trial court's ruling as a final decision as contemplated by Rule 32.16(a)(1). We further conclude, by filing his petition in April 2020, five months after the purported changes to ADOC's computer system, Harold attempted to satisfy the requirement of Rule 32.4(b)(3)(B) that a defendant must raise a claim pursuant to Rule 32.1(c) "within a reasonable time after discovering the basis of the claim."
¶4 On review, Harold asserts, as he did below, that he is entitled to relief because requiring him to participate in community supervision pursuant to § 13-603(I) after serving his entire prison term constitutes two sentences or punishments for a single offense, thereby violating the prohibition against double jeopardy. Insofar as Harold argues his term of community supervision cannot extend past the end of his maximum sentence, and that the trial court's ruling was therefore "misplaced," he is mistaken. Section 13-603(I) unambiguously contemplates that community supervision will extend past the end of the maximum prison term. See also State v. Jenkins, 193 Ariz. 115, ¶¶ 11-14 (App. 1998) (community supervision is mandatory and applies to calendar year, "flat-time" sentences). Moreover, because the community supervision term was part of Harold's sentence, it does not constitute additional punishment and thus no double jeopardy violation occurred. See State v. Cowles, 207 Ariz. 8, ¶¶ 9, 14 (App. 2004) ("Community supervision is not equivalent to imprisonment," but is "part of the sentence that has to be served in the community after completion of a period of imprisonment."); see also A.R.S. § 13-105(5) ("'Community supervision' means that portion of a felony sentence that is imposed by the court pursuant to § 13-603, subsection I and that is served in the community after completing a period of imprisonment . . . .").
To the extent Harold also argues on review that § 13-603(I) is ambiguous, an argument he raised for the first time in his reply to the state's response to his petition below, and one which the trial court apparently did not consider, we do not address it on review. See State v. Lopez, 223 Ariz. 238, ¶¶ 6-7 (App. 2009) (court not required to address claims raised for first time in reply brief). --------
¶5 We thus conclude the trial court did not abuse its discretion by denying Harold's request for relief. Accordingly, although we grant review, we deny relief.