Opinion
2 CA-CR 2022-0143-PR
11-02-2022
The State of Arizona, Respondent, v. Hubert Livingston Johnson, Petitioner.
Hubert L. Johnson, Kingman In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Mohave County No. CR202000055 The Honorable Billy K. Sipe Jr., Judge Pro Tempore
Hubert L. Johnson, Kingman In Propria Persona
Presiding Judge Eppich authored the decision of the Court, in which Vice Chief Judge Staring and Judge Brearcliffe concurred.
MEMORANDUM DECISION
EPPICH, Presiding Judge:
¶1 Hubert Johnson seeks review of the dismissal of his notice of post-conviction relief, filed pursuant to Rule 33, Ariz. R. Crim. P. We will not disturb that dismissal unless the trial court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Johnson has not met his burden of establishing such abuse here.
¶2 Johnson was convicted of failing to comply with sex-offender registration requirements and possession of dangerous drugs. After a probation violation, the trial court sentenced him to consecutive prison terms totaling four years.
¶3 In February 2022, Johnson filed a notice of post-conviction relief, asserting claims under Rule 33.1(a), (c), (e), and (g). He avowed he had "raised each claim within a reasonable time after learning of the claim." Shortly thereafter, the trial court dismissed Johnson's notice, explaining that it was "not timely" because it had been filed more than ninety days after the entry of judgment and sentence. The court further noted that Johnson had failed "to allege the untimely filing was without [his] fault." Johnson filed a "reply" to the court's ruling, arguing it was "premature" because he was "still in the process" of completing his petition. The court, however, affirmed its dismissal, again reasoning that Johnson's notice "was not filed in a timely manner pursuant to Rule 33.4."
¶4 In April 2022, Johnson filed a "Motion to Demonstrate that the Defendant Does Indeed Have a Claim." Johnson argued that he had complied with the sex-offender registration statute, A.R.S. § 13-3822(A),because he was transient, he had ninety days to register, and he had registered ten days before his arrest. He further asserted that the Kingman Police Department had "manipulated the truth of their own report." The following month, the court denied the motion, explaining that, "to the extent the defendant's motion is requesting post-conviction relief, it is untimely." The court also rejected Johnson's argument that "he did not violate the registration [] laws for a transient" because Johnson had misrepresented "the date of violation," which was more than ninety days since he had last registered. Johnson petitioned this court for review.
As relevant here, § 13-3822(A) provides: "If the person does not have an address or a permanent place of residence, the person shall register as a transient not less than every ninety days with the sheriff in whose jurisdiction the transient is physically present."
Johnson's petition for review was filed before the trial court ruled on his April 2022 motion to demonstrate a claim. However, we review that ruling to the extent the court affirmed its prior dismissal. See Ariz. R. Crim. P. 33.16(a)(1); cf. State v. Padilla, 176 Ariz. 81, 83 (App. 1993) (failure to file timely petition for review not jurisdictional).
¶5 On review, Johnson argues that he "obtained newly discovered evidence" but "never got th[e] opportunity to demonstrate" his Rule 33.1(e) claim because the trial court summarily dismissed his notice. He again asserts that he was compliant with § 13-3822(A) and that the Kingman Police Department "manipulated" its report.
¶6 Generally, a defendant must file a notice of post-conviction relief raising "a claim under Rule 33.1(a) within 90 days after the oral pronouncement of sentence." Ariz. R. Crim. P. 33.4(b)(3)(A). However, the court must excuse an untimely notice filed under this subsection "if the defendant adequately explains why the failure to timely file a notice was not the defendant's fault." Ariz. R. Crim. P. 33.4(b)(3)(D). For claims under Rule 33.1(b) through (h), the defendant must file a notice "within a reasonable time after discovering the basis for the claim." Ariz. R. Crim. P. 33.4(b)(3)(B). "If the notice does not provide sufficient reasons why the defendant did not raise the claim . . . in a timely manner, the court may summarily dismiss the notice." Ariz. R. Crim. P. 33.2(b)(1).
¶7 The trial court correctly determined that Johnson's February 10, 2022 notice was filed more than ninety days after the oral pronouncement of sentence on September 20, 2021. As such, any Rule 33.1(a) claim was untimely, and, although the court would have had to excuse the untimely filing if Johnson established that the untimeliness was not his fault, he failed to do so. See State v. Reed, 252 Ariz. 236, ¶ 11 (App. 2021).
¶8 However, the only claim Johnson reasserts on review is one of newly discovered evidence pursuant to Rule 33.1(e). 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 . . . constitutes a waiver of appellate review of that issue."). As to that claim, Johnson needed to file his notice within a reasonable time after its discovery or else provide sufficient reasons why he had not done so. Johnson maintains the newly discovered evidence "was not provided to [him] until [he] was sentenced." But Johnson failed to file his February 2022 notice for nearly five months after the sentencing. He offers neither any explanation for the delay in the filing of his notice nor any reason why the trial court erred in dismissing it. See Ariz. R. Crim. P. 33.16(c)(2)(D) (petition must include "reasons why the appellate court should grant the petition, including citations to supporting legal authority, if known"); State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (failure to develop argument waives claim on review). As such, we cannot say the court abused its discretion in dismissing Johnson's notice.
¶9 Accordingly, we grant review but deny relief.