Opinion
2 CA-CR 2023-0092-PR
07-10-2023
The State of Arizona, Respondent, v. Thomas Alec Kidwell, Petitioner.
Thomas A. Kidwell, Florence In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20043372001 The Honorable Renee L.K. Hampson, Judge Pro Tempore
Thomas A. Kidwell, Florence In Propria Persona
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vásquez and Judge Gard concurred.
MEMORANDUM DECISION
EPPICH, PRESIDING JUDGE
¶1 Thomas Kidwell seeks review of the trial court's order summarily dismissing his post-conviction proceeding filed pursuant to Rule 32, 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). We find no such abuse here.
¶2 Following a jury trial in 2005, Kidwell was convicted of eight counts of sexual exploitation of a minor. The trial court sentenced him to a combination of consecutive and concurrent, mitigated and presumptive terms of imprisonment totaling sixty years. In 2006, we affirmed Kidwell's convictions and sentences on appeal. State v. Kidwell, No. 2 CA-CR 2005-0292 (Ariz. App. Nov. 22, 2006) (mem. decision). And in 2010, we granted review but denied relief from his petition for review of the court's dismissal of his first Rule 32 petition. State v. Kidwell, No. 2 CA-CR 2010-0166-PR (Ariz. App. Sept. 3, 2010) (mem. decision).
¶3 In March 2023, Kidwell again sought post-conviction relief, asserting on the form petition that he was seeking relief under Rule 32.1(a), (b), and (h), asking that his sentence be corrected, and stating that the Arizona Supreme Court "ordered" him to "file this motion." He attached to his petition several pleadings, including a petition for special action and a motion for reconsideration and transfer directed to the Arizona Supreme Court, and the supreme court's February 2023 order noting it had dismissed his special action petition without prejudice and denying his motion for reconsideration and transfer.
In his form notice of post-conviction relief, which he filed on the same day as his petition, Kidwell checked the boxes indicating he was requesting relief under Rule 32.1(a), (c), (d), (f), and (h), and noted that the reason his untimely filing was not his fault was because "[t]he Arizona Supreme Court [had] ordered this motion to be filed."
¶4 The trial court dismissed Kidwell's petition in April 2023. The court determined that his claim raised pursuant to Rule 32.1(a) was untimely, a fact it stated it could not excuse in the absence of an explanation why the untimely filing was not Kidwell's fault. The court similarly found the claims raised under Rule 32.1(c), (d), (f), and (h) were untimely, noting that Kidwell had failed to offer any explanation regarding the discovery of those claims, much less provide sufficient reasons why he did not raise them in a previous notice or petition or in a timely manner. This petition for review followed.
Although Kidwell cited Rule 32.1(f) in his notice, that provision does not apply to an untimely notice of post-conviction relief.
Kidwell did, in fact, previously claim his sentences constitute cruel and unusual punishment, a claim the trial court found precluded because he could have raised it on appeal. See Kidwell, No. 2 CA-CR 2010-0166-PR, ¶¶ 3-4.
¶5 On review, Kidwell argues the trial court abused its discretion by dismissing his Rule 32 proceeding. He suggests that the directive by the Arizona Supreme Court telling him to file "the appropriate petition" as a Rule 32 proceeding in the superior court, rather than the supreme court, somehow excused the untimeliness of his claim or guaranteed him a successful outcome. Insofar as Kidwell also contends, pursuant to Rule 32.3(b), that the supreme court erred by failing to transfer his special action petition to the superior court on his behalf, we note that this court is not the proper venue in which to challenge the conduct of the Arizona Supreme Court.
¶6 Generally, a "defendant is precluded from relief under Rule 32.1(a) based on any ground . . . finally adjudicated on the merits in an appeal" or "waived at trial or on appeal, or in any previous post-conviction proceeding." Ariz. R. Crim. P. 32.2(a)(2), (3). Moreover, although Rule 32.4(b)(3)(D) directs the trial court to excuse an untimely notice raising a claim pursuant to Rule 32.1(a) "if the defendant adequately explains why the failure to timely file a notice was not the defendant's fault," the court here did not err by rejecting Kidwell's explanation that his late filing was not his fault because the supreme court directed him to file his petition in the appropriate court. Put simply, his otherwise untimely filing did not become timely merely because the supreme court directed him to refile it in the proper court.
¶7 Additionally, "[c]laims for relief based on Rule 32.1(b) through (h) are not subject to preclusion under Rule 32.2(a)(3), but they are subject to preclusion under Rule 32.2(a)(2)." Ariz. R. Crim. P. 32.2(b). "However, when a defendant raises a claim that falls under Rule 32.1(b) through (h) in a successive or untimely post-conviction notice, the defendant must explain the reasons for not raising the claim in a previous notice or petition, or for not raising the claim in a timely manner." Id. If the defendant fails to provide sufficient reasons for failing to do so, the trial court may summarily dismiss the proceeding. Id. The court may determine that an issue is precluded "[a]t any time." Id. Absent a sufficient explanation for a delayed filing, however, there is no basis to conclude a defendant, as required by Rule 32.4(b)(3)(B), brought a claim "within a reasonable time" after discovering it. See State v. Pope, 130 Ariz. 253, 256 (1981) (defendant has "heavy burden in showing the court why the non-compliance should be excused"). The court here correctly determined that Kidwell had not sustained that burden, as previously noted. We thus find no error in the court 's summary dismissal of Kidwell's Rule 32 proceeding.
Although the trial court appears to have mistakenly referred to certain subsections of Rule 32 in its ruling, it is clear the court correctly found Kidwell's claims untimely. Cf. State v. Oakley, 180 Ariz. 34, 36 (App. 1994) (appellate court "will affirm the trial court when it reaches the correct result even though it does so for the wrong reasons").
¶8 Accordingly, we grant review but deny relief.