Opinion
2 CA-CR 2023-0123-PR
08-16-2023
The State of Arizona, Respondent, v. Travis O. Hylton, Petitioner.
Law Office of Dan Cooper, Tucson By Dan H. Cooper Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20081995 The Honorable Howard Fell, Judge Pro Tempore
Law Office of Dan Cooper, Tucson By Dan H. Cooper Counsel for Petitioner
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vasquez and Judge Gard concurred.
MEMORANDUM DECISION
EPPICH, Presiding Judge
¶1 Travis Hylton seeks review of the superior court's order summarily dismissing his successive 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. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Hylton has not met his burden of establishing such abuse here.
¶2 In 2009, Hylton pled guilty to four counts of aggravated assault and was sentenced to concurrent and consecutive prison terms totaling fifty-eight years. Hylton was a juvenile at the time of his offenses. Hylton then sought and was denied post-conviction relief.
Although Hylton had only one post-conviction proceeding, the superior court nonetheless addressed and rejected his claim of ineffective assistance of post-conviction counsel, raised in a pro se petition after appointed counsel had filed a notice stating he reviewed the record but found no viable post-conviction claims.
¶3 In 2018, Hylton filed a notice of post-conviction relief identifying a claim under Rule 33.1(g) that there had been a significant change in the law. Specifically, he asserted that the United States Supreme Court had "restrict[ed]" the imposition of life sentences for juveniles, citing Miller v. Alabama, 567 U.S. 460 (2012), and Graham v. Florida, 560 U.S. 48 (2010). After numerous extensions, Hylton filed a petition for post-conviction relief in 2022, which he styled as a "motion for resentencing," asserting his trial and first post-conviction counsel had been ineffective for failing to correct the superior court's statement that he had no mental health history despite ample evidence of his mental health issues. He did not further assert a claim under Rule 33.1(g) but cited Miller as well as Montgomery v. Louisiana, 577 U.S. 190 (2016), for the proposition there had been a "sea change" in the law governing juvenile sentencing. He acknowledged, however, that those cases "might in fact not" afford him relief.
¶4 The superior court summarily dismissed the proceeding. It noted, first, that Miller and Montgomery did not apply to Hylton because he did not receive a life sentence. The court also observed that Hylton's claim of ineffective assistance of post-conviction counsel had been raised and rejected in his previous post-conviction proceeding. Finally, the court concluded the sentencing court clearly had been aware of Hylton's mental health history and had merely misspoken at sentencing "or the transcript [was] inaccurate." This petition for review followed.
Miller and Montgomery prohibit mandatory sentences of life without parole for juveniles. See Jones v. Mississippi, 141 S.Ct. 1307, 1321 (2021). In State v. Soto-Fong, our supreme court determined those cases did not apply to defendants, like Hylton, who received consecutive sentences for multiple crimes. 250 Ariz. 1, ¶ 50 (2020).
¶5 On review, Hylton again acknowledges he is not entitled to relief under Miller and Montgomery. He argues the superior court erred by rejecting his claim of ineffective assistance by ignoring "the plain language, and words, of the sentencing transcript." He does not address, however, the court's conclusion that his claim is precluded because it was raised and rejected in a previous proceeding. See Ariz. R. Crim. P. 33.2(a)(2). And even were the claim not precluded, it is untimely. See Ariz. R. Crim. P. 33.4(b)(3)(C).
¶6 We grant review but deny relief.