Opinion
No. 2 CA-CR 2017-0132-PR
05-03-2017
THE STATE OF ARIZONA, Respondent, v. ALBERT KARL HEITZMANN, Petitioner.
Albert K. Heitzmann, Phoenix 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NOT FOR PUBLICATION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. 31.24.
Petition for Review from the Superior Court in Maricopa County
No. CR2007127543001DT
The Honorable Rosa Mroz, Judge
REVIEW GRANTED; RELIEF DENIED
Albert K. Heitzmann, Phoenix
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Staring and Judge Miller concurred.
ESPINOSA, Judge:
¶1 Albert Heitzmann seeks review of the trial court's order summarily dismissing his successive and untimely notice of post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court clearly abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7, 353 P.3d 847, 848 (2015). Heitzmann has not met his burden of demonstrating such abuse here.
¶2 After a jury trial, Heitzmann was convicted of perjury, attempted witness tampering, and two counts of misconduct involving weapons. The trial court sentenced him to concurrent, one-year prison terms for weapons misconduct, to be followed by a 2.5-year term for perjury, and it suspended the imposition of sentence for attempted witness tampering, placing Heitzmann on a consecutive two-year term of probation. On appeal, we vacated Heitzmann's convictions and sentences for weapons misconduct, concluding they were unsupported by the evidence. State v. Heitzmann, No. 1 CA-CR 08-0228, ¶24 (Ariz. App. Oct. 27, 2009) (mem. decision). We affirmed his remaining convictions and sentences. Id.
¶3 Heitzmann sought post-conviction relief, which the trial court summarily denied. This court denied relief on review. State v. Heitzmann, No. 2 CA-CR 2012-0147-PR (Ariz. App. July 6, 2012) (mem. decision). In November 2014, Heitzmann filed another notice of post-conviction relief, citing Rule 32.1(a) and (h) and claiming "key evidence" had been withheld "due to ineffective counsel" and requesting disclosure of certain documents as well as a transcript. The trial court summarily dismissed the proceeding, and Heitzmann did not seek review in this court. In December 2014, he filed a "rough draft" of a petition for post-conviction relief and a motion for reassignment of judge pursuant to Rule 32.4(e) referring to that draft
and indicating the current judge's testimony "will be relevant to this case." The court again entered an order summarily "dismissing [the] Petition for Post-Conviction relief." Heitzmann did not seek review of that ruling.
¶4 Heitzmann filed his most-recent notice of post-conviction relief in November 2015, citing Rule 32.1(a), (e), and (h). He asserted he was entitled to raise his claims because the trial court "and all three of his court appointed lawyers worked with the State to withhold key evidence." He listed eight issues related to his perjury conviction, including identifying several purported "variance[s]" between trial evidence and other evidence, claiming he had not been "accused . . . of perjury," and asserting his trial counsel had been ineffective and the court had "committed fraud." The court summarily dismissed the notice, concluding Heitzmann had not complied with Rule 32.2(b). This petition for review followed.
¶5 On review, Heitzmann asserts that his notice was not untimely because the "statute of limitations" has not yet run, reasoning his prison sentences did not "officially conclude[]" until June 13, 2016. But the duration or expiration of Heitzmann's prison term is irrelevant to whether his notice was timely filed. For a non-pleading defendant like Heitzmann, a notice is timely only if filed "within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the order and mandate in the direct appeal, whichever is the later." Ariz. R. Crim. P. 32.4(a). Heitzmann's most-recent notice, filed years after the mandate issued in his direct appeal, is patently untimely. Heitzmann therefore was only permitted to raise claims pursuant to Rule 32.1(d) through (h), and the trial court was required to summarily dismiss his claims made pursuant to Rule 32.1(a). See Ariz. R. Crim. P. 32.4(a).
¶6 As noted above, Heitzmann also listed Rule 32.1(e) and (h) in his notice. Although such claims can be raised in an untimely proceeding, to avoid summary dismissal of his notice, Heitzmann was required to "set forth the substance of the specific exception and the reasons for not raising the claim in the previous petition or in a timely manner" and provide "meritorious reasons . . . substantiating the claim." Ariz. R. Crim. P. 32.2(b).
¶7 In addressing Heitzmann's claim of newly discovered evidence pursuant to Rule 32.1(e), the trial court concluded Heitzmann had not identified any evidence that could not have been brought to the court's attention sooner. On review, Heitzmann asserts the evidence had been "suppressed" and thus is "as good as newly discovered." But he does not explain in his petition how the evidence had been suppressed or why his trial counsel could not have discovered the evidence in the exercise of due diligence. See State v. Saenz, 197 Ariz. 487, ¶ 7, 4 P.3d 1030, 1032 (App. 2000) (under Rule 32.1(e), defendant must show the evidence "could not have been discovered and produced at trial through reasonable diligence"). And, although he suggested below that his trial counsel was somehow involved in keeping such evidence from him, he has identified nothing that supports that claim.
¶8 Finally, Heitzmann complains the trial court erred in rejecting his claim of actual innocence under Rule 32.1(h) because it had required him "to prove his innocence" in violation of "the underlying philosophy of criminal justice in this country." But, to obtain relief under Rule 32.1(h), a defendant must "demonstrate[] by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would have found defendant guilty of the underlying offense beyond a reasonable doubt." Heitzmann has cited no authority suggesting this rule is unconstitutional or otherwise improper. See State v. Stefanovich, 232 Ariz. 154, ¶ 16, 302 P.3d 679, 683 (App. 2013) (insufficient argument waives claim on review). Nor has he argued the court erred in concluding he had not complied with Rule 32.2(b) because he had failed to substantiate this claim.
¶9 Although we grant review, relief is denied.