Opinion
2 CA-CR 2023-0179-PR
08-30-2023
The State of Arizona, Respondent, v. Sterling Austin Hinckley, Petitioner.
Dennis M. McGrane, Yavapai County Attorney By Scott W. Blake, Deputy County Attorney, Prescott Counsel for Respondent Sterling A. Hinckley, Florence In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Yavapai County Nos. P1300CR202000457 and P1300 CR202000459 The Honorable Krista M. Carman, Judge
Dennis M. McGrane, Yavapai County Attorney By Scott W. Blake, Deputy County Attorney, Prescott Counsel for Respondent
Sterling A. Hinckley, Florence In Propria Persona
Chief Judge Vasquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Gard concurred.
MEMORANDUM DECISION
VASQUEZ, CHIEF JUDGE
¶1 Sterling Hinckley seeks review of the superior court's ruling 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. See State v. Martinez, 226 Ariz. 464, ¶ 6 (App. 2011). Hinckley has not established such abuse here.
¶2 Pursuant to a 2020 plea agreement, Hinckley was convicted of sexual assault in cause number CR202000457 and trafficking in stolen property (count 1), forgery (count 2), possession or use of narcotic drugs (count 4), and weapons misconduct (count 8) in cause number CR202000459. The superior court sentenced him to seven years' imprisonment for sexual assault, to run consecutively to his concurrent prison terms in CR202000459, the longest of which was five years.
The court awarded Hinckley 192 days' presentence incarceration credit for all the offenses under both cause numbers. In its response to Hinckley's Rule 33 petition below, the state argued that he "should have only received credit for time served on one of the cases because the terms of imprisonment were consecutive to each other." However, the state conceded that it "did not correct this error at the time of sentencing, and it is too late to correct it now." See Ariz. R. Crim. P. 24.3(a) (permitting correction of unlawful sentence generally "[n]o later than 60 days of the entry of judgment and sentence"); State v. Bryant, 219 Ariz. 514, ¶¶ 8, 11 (App. 2008) (unlawful sentence must be corrected within sixty days "or the sentence will stand"). We therefore do not consider this issue further.
¶3 In March 2022, Hinckley filed a notice of post-conviction relief. The superior court observed that his notice was filed untimely but nonetheless accepted it as timely and appointed Rule 33 counsel. Counsel subsequently filed a notice avowing that she had reviewed the record but had been "unable to identify any colorable claims to make." In his subsequently filed pro se petition, Hinckley argued that the sentencing court had failed to orally pronounce the sentence for his trafficking conviction during the sentencing hearing and that he had received ineffective assistance of counsel at sentencing. The superior court was concerned that Hinckley's sentencing claim was colorable and therefore ordered the state to file a supplemental response on that issue.
¶4 The state admitted that the sentencing court had "orally omitted the sentence" of Hinckley's conviction for trafficking in stolen property in CR202000459. However, because the court had "stated on the record two different times that [it] was sentencing [Hinckley] to the presumptive sentences," the state reasoned that the court's intent was clear-it had intended to impose a presumptive prison term for trafficking-and the written minute entry "reflects that intent." The state also asserted that Hinckley had failed to provide any "solid, concrete or irrefutable evidence that his counsel's representation fell below the level of reasonable professional assistance."
¶5 In December 2022, the superior court summarily dismissed Hinckley's petition. The court agreed with the state as to Hinckley's sentencing claim, explaining that, although the sentencing court had "orally omitted the sentence" for the trafficking conviction, the record was clear- based on the court's other statements at the hearing and its written minute entry-that it had intended to sentence Hinckley to a presumptive prison term. The court also rejected Hinckley's claim of ineffective assistance of counsel. Hinckley filed a motion for rehearing, which was denied. This petition for review followed.
¶6 On review, Hinckley again argues that the sentencing court failed to orally sentence him for his trafficking conviction in CR202000459 and that he was prejudiced thereby. He further maintains the superior court erred by dismissing his claim without an evidentiary hearing.
Hinckley does not reassert his claim of ineffective assistance of counsel. We therefore do not address it. See Ariz. R. Crim. P. 33.16(c)(4) ("A party's failure to raise any issue that could be raised in the petition for review or cross-petition for review constitutes a waiver of appellate review of that issue.").
¶7 In a proceeding for post-conviction relief, a "defendant is entitled to an evidentiary hearing when he presents a colorable claim, that is a claim which, if defendant's allegations are true, might have changed the outcome." State v. Gutierrez, 229 Ariz. 573, ¶ 25 (2012) (quoting State v. Watton, 164 Ariz. 323, 328 (1990)). Conversely, the "court shall dismiss a petition that does not raise a colorable claim." Id.; see also Ariz. R. Crim. P. 33.11(a).
¶8 When there is a discrepancy between the sentencing transcript and minute entry, it is appropriate to remand the matter unless we can discern the sentencing court's intent from the record. State v. Bowles, 173 Ariz. 214, 216 (App. 1992); see also State v. Ovante, 231 Ariz. 180, ¶ 38 (2013). We have a "duty to interpret all parts of the record together, giving effect, if possible, to all and a deficiency in one place may be supplied by what appears in another." State v. Rockerfeller, 9 Ariz.App. 265, 267 (1969).
¶9 At the hearing, the sentencing court identified all the offenses for which Hinckley had pled guilty and on which it was imposing sentence, including: "In case CR202000459, Count 1 of the information, trafficking in stolen property, first degree, committed on or about April 5th, 2020, in violation of A.R.S. Sections 13-2307(B), 701, 702 and 801, a Class 2 felony." After identifying the relevant mitigating and aggravating factors, the court stated, "In weighing all that out, that really lands me at the presumptive sentences for Mr. Hinckley." The court later repeated, "I believe that the weight of [the aggravating factors] compared with the mitigating puts me equal. So that's the presumptive term." The court then stated:
It is, therefore, the judgment and sentence of the Court, that the defendant be imprisoned in the Arizona Department of Corrections for the presumptive term, in case ending in 457, of seven years, which is flat time. That is consecutive to the case in 459.
459, Count 2, the presumptive term is five years and Count 4, the presumptive term is two and a half years, as well as Count 8 is two and a half years. All of the counts in case number 459 are concurrent to one another.
¶10 Based on the transcript, we agree with Hinckley that the sentencing court failed to explicitly, orally impose a sentence for his trafficking offense (count 1) in CR202000459. As Hinckley points out, the court also conflated the presumptive term for forgery (count 2) as five years, which was-pursuant to the terms of the plea agreement-the presumptive term for trafficking in stolen property. See A.R.S. § 13-702(D) (presumptive term for class two is five years; presumptive term for class four is 2.5 years).
¶11 However, the sentencing court also made two separate statements at the hearing that it was imposing presumptive terms for all the convictions. These statements are consistent with the sentencing minute entry, which shows, among other things, a presumptive five-year prison term for trafficking and a presumptive, 2.5-year term for forgery. Thus, based on the record as a whole, the court's intent is clear. The court intended to impose a presumptive, five-year prison term for Hinckley's trafficking conviction. Cf. State v. Hanson, 138 Ariz. 296, 304 (App. 1983) ("This is not a case where the trial court failed to express its true intention; its intent is clearly expressed in the record, but not precisely in the form dictated by Rule 26.10."). Indeed, the "lack of ambiguity in the court's action is indicated by the fact that this issue was not raised by anyone present at the sentencing hearing." Id. The superior court therefore did not abuse its discretion in dismissing Hinckley's sentencing claim without an evidentiary hearing. See Martinez, 226 Ariz. 464, ¶ 6.
Hinckley had a right to be present for his sentencing, see Ariz. R. Crim. P. 26.9, and correction of an illegal sentence by minute entry is not permitted, State v. Powers, 154 Ariz. 291, 295 (1987). But Hinckley has not challenged his sentence on this basis. In any event, Hinckley was present when the sentencing court announced its intent to impose presumptive prison terms-suggesting no correction of an illegal sentence was necessary. See Ariz. R. Crim. P. 26.10(c) (when pronouncing sentence court must "explain to the defendant the terms of the sentence or probation").
¶12 Accordingly, we grant review but deny relief.