Opinion
2 CA-CR 2023-0220-PR
03-27-2024
The State of Arizona, Respondent, v. Bryan Lee McNew, Petitioner.
Dennis M. McGrane, Yavapai County Attorney By Christopher G. Michalsky, Deputy County Attorney, Prescott Counsel for Respondent Bryan L. McNew, Eloy 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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 No. V1300CR202180062 The Honorable Michael R. Bluff, Judge
Dennis M. McGrane, Yavapai County Attorney By Christopher G. Michalsky, Deputy County Attorney, Prescott Counsel for Respondent
Bryan L. McNew, Eloy In Propria Persona
Judge Kelly authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Eckerstrom concurred.
MEMORANDUM DECISION
KELLY, JUDGE
¶1 Bryan McNew seeks review of the trial court's orders summarily dismissing his notice of post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., and denying his motion for rehearing. We will not disturb this ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). McNew has not met his burden of establishing such abuse here.
¶2 After a jury trial, McNew was convicted of possession of dangerous drugs for sale, drug paraphernalia, and misconduct involving weapons. The trial court sentenced him to concurrent prison terms, the longest of which is fourteen years. We affirmed his convictions and sentences, as modified, on appeal. State v. McNew, No. 1 CA-CR 22-0256 (Ariz. App. Jan. 5, 2023) (mem. decision). Our mandate issued February 23, 2023.
¶3 In June 2023, McNew requested the status of his notice of post-conviction relief, claiming he had mailed his notice on September 10, 2022. He included with his filing a copy of the prison mail log, which showed he had sent outgoing legal mail to the clerk of the court on that date. The trial court entered an order stating no notice of post-conviction relief was pending and observing that the September 10 mailing corresponded to McNew's motion seeking disclosure, which the court had received in September 2022, and denied in October.
¶4 McNew then filed a notice of post-conviction relief stating he intended to raise a claim of ineffective assistance of counsel. He asserted he had inadvertently sent the notice of post-conviction relief to the Yavapai County Attorney, rather than the court, on November 2, 2022. He again attached the mail log, which showed he had sent outgoing mail to the county attorney on that date. Citing Rule 32.4(b)(3), the trial court dismissed the notice as untimely, concluding "the fact that [McNew] addressed the mail to the County Attorney instead of the Clerk of the Court is his fault."
¶5 McNew filed a motion for rehearing asserting the county attorney's office had been obligated to forward his mailing to the clerk of the court or return it to him. The trial court denied the motion, observing there was no evidence McNew's mailing to the county attorney's office was a notice of post-conviction relief. The court further noted the county attorney's office might have concluded it had been sent the notice pursuant to Rule 1.9, Ariz. R. Crim. P., and it had no obligation in any event to forward the filing to the court even assuming it recognized that McNew had failed to send it to the correct address. This petition for review followed.
¶6 On review, McNew again asserts that he sent his first notice to the wrong address. He argues that he reasonably believed it would be returned to him or transferred to the clerk of the court and accuses the county attorney of deliberately stymying his attempt to seek post-conviction relief. "A defendant starts a Rule 32 proceeding by filing a Notice Requesting Post-Conviction Relief." Ariz. R. Crim. P. 32.4(a). That notice must be filed "in the court where the defendant was sentenced," and, if the defendant intends to raise a constitutional claim under Rule 32.1(a), it must be filed "within 90 days after the oral pronouncement of sentence or within 30 days after the issuance of the mandate in the direct appeal, whichever is later." Ariz. R. Crim. P. 32.4(b)(1), (3)(A).
¶7 The failure to file a timely notice, however, must be excused "if the defendant adequately explains why the failure to timely file a notice was not the defendant's fault." Ariz. R. Crim. P. 32.4(b)(3)(D). Pro se prisoners, like McNew, "are deemed to have filed legal documents if the filing is properly addressed and has been delivered 'to the proper prison authorities to be forwarded to the clerk of the . . . court.'" State v. Young, 253 Ariz. 367, ¶ 8 (App. 2022) (quoting Mayer v. State, 184 Ariz. 242, 245 (App. 1995)); see also State v. Rosario, 195 Ariz. 264, ¶ 10 (App. 1999) (applying rule to post-conviction notice).
¶8 We cannot conclude the trial court abused its discretion by determining McNew had not met his "heavy burden in showing the court why [his] non-compliance should be excused." State v. Pope, 130 Ariz. 253, 256 (1981). McNew acknowledges that he misaddressed his filing. McNew asserts, however, that he mailed his notice by placing it with prison officials for delivery, and, but for his misaddressing of the envelope, it would have been properly filed. Even if we were to deem his misaddressing the envelope mailed on November 2, 2022, excusable and the notice timely, questions we do not reach here, the court found that McNew had failed to prove that the November 2 mailing was of his notice. McNew offered nothing but his bare assertion that the November 2 mailing was his notice; he produced nothing contemporaneous with the mailing-a dated photocopy, for example-that supported his claim. Indeed, he had first asserted that his September 10, 2022 mailing was his notice, but that was demonstrated to be false. Notably, the Yavapai County Attorney's Office was unable to locate any notice purportedly directed to them on or around November 2, 2022. The record therefore provides ample cause for the court to treat McNew's claim regarding the November 2 mailing with skepticism. At minimum, the record supports the court's factual finding that McNew failed to prove that his notice had been mailed.
¶9 As to McNew's claim that, if it had received his notice, the prosecutor's office was obligated to either return it to him or forward it on to be filed, we recognize that prosecutors have a "unique role in the justice system." In re Martinez, 248 Ariz. 458, ¶ 8 (2020). They have "the duty to 'see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.'" Id. (quoting Ariz. R. Sup. Ct. 42, ER 3.8). But McNew has not identified, nor have we found, any basis to impose on prosecuting agencies the obligation to determine if a pro se defendant has misdirected a filing. And, again, as the trial court found, McNew has not established the mail sent to the county attorney was, in fact, a notice of post-conviction relief. Moreover, the court also noted that McNew had not identified any reason for the county attorney to have concluded the mailing was anything other than an attempt to comply with Rule 1.9(b), which requires service of motions on all parties.
¶10 We grant review but deny relief.