Opinion
2 CA-CR 2021-0064-PR
11-01-2021
The State of Arizona, Respondent, v. Timothy Francis Henry, Petitioner.
R&R Law Group PLLC, Scottsdale By Ryan W. Cummings, Robert F. Gruler Jr., Jushin S. Gill, Charity E. Clark, and Stephen Johnson Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Cochise County No. S0200CR201900007 The Honorable Timothy B. Dickerson, Judge
R&R Law Group PLLC, Scottsdale By Ryan W. Cummings, Robert F. Gruler Jr., Jushin S. Gill, Charity E. Clark, and Stephen Johnson Counsel for Petitioner 1
Chief Judge Vasquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Brearcliffe concurred.
MEMORANDUM DECISION
VASQUEZ, CHIEF JUDGE
¶1 Timothy Henry seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 33, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Because Henry has not complied with Rule 33, we deny review.
¶2 Pursuant to a plea agreement in 2020, Henry was convicted of weapons misconduct and transportation of a narcotic drug (heroin) for sale in exchange for the dismissal of approximately twenty counts. See A.R.S. §§ 13-3102, 13-3408(A)(7). The trial court sentenced Henry to consecutive, presumptive prison terms totaling fourteen years.
¶3 Henry initiated a post-conviction proceeding, and appointed counsel filed a petition asserting trial counsel had been ineffective by failing to: contest venue because the heroin sale took place in Pima County, rather than Cochise County, maintaining that "no element of [transportation of a narcotic drug for sale] took place in Cochise County"; provide an accurate factual basis at the change-of-plea hearing; and, request a mitigation hearing. Henry also asserted that, because venue was improper, the trial court lacked subject matter jurisdiction to convict and sentence him. In its April 2021 ruling summarily dismissing Henry's petition, the court 2 addressed each of his claims of ineffective assistance of counsel in turn, and then concluded he had failed to present a colorable claim for relief.
Although Henry attached to his petition below an affidavit from trial counsel stating he had not discussed venue with Henry, Henry notably did not include an affidavit on his own behalf stating he would not have pled guilty if counsel had been able to get the drug count dismissed on venue grounds.
Trial counsel first filed a notice of appeal on Henry's behalf, which we dismissed. See Ariz. R. Crim. P. 17.1(e) (defendant who pleads guilty waives right to direct appeal).
Although the trial court did not separately address Henry's claim that it lacked subject matter jurisdiction, we infer that, based on the court's ruling, including a reference to that argument, it likewise rejected that claim. In any event, Henry's argument conflates venue with jurisdiction; the court's subject matter jurisdiction over him is not implicated if the case is brought in an improper county. See State v. Willoughby, 181 Ariz. 530, 537 n.7, 543 (1995) ("jurisdiction is the power of a court to try a case," while "venue concerns the locale where the power may be exercised").
¶4 Although Henry has filed what purports to be a petition for review of the trial court's ruling, it is essentially a verbatim copy of his petition for post-conviction relief, albeit with some changes made to the title and signature pages and some minor changes to some of the headings. Notably, in his petition for review, Henry does not refer to the court's ruling below, nor does he explain why he believes the court improperly dismissed his petition, much less explain how it abused its discretion by doing so. See Ariz. R. Crim. P. 33.16(c)(2)(D) (petition for review must contain "reasons why the appellate court should grant the petition").
Other than generally asking this court to "review the [trial court's] denial of Petition for Post-Conviction Relief," Henry makes no reference to the court's ruling in his fourteen-page petition for review.
¶5 Henry's failure to comply with Rule 33.16 justifies our refusal to grant review. See Ariz. R. Crim. P. 33.16(k) (describing appellate review under Rule 33.16 as discretionary); State v. French, 198 Ariz. 119, ¶ 9 (App. 2000) (summarily rejecting claims not complying with rules governing form and content of petitions for review), disapproved on other grounds by Stewart v. Smith, 202 Ariz. 446, ¶ 10 (2002); cf. State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (insufficient argument waives claim on review).
¶6 Accordingly, we deny review. 3