Opinion
2 CA-CR 2012-0471-PR
03-07-2013
THE STATE OF ARIZONA, Respondent, v. LEROY JAMES MICHAEL, Petitioner.
LeRoy Michael Florence In Propria Persona
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR039880
Honorable Richard D. Nichols, Judge
REVIEW GRANTED; RELIEF DENIED
LeRoy Michael Florence
In Propria Persona
VÁSQUEZ, Presiding Judge. ¶1 LeRoy Michael petitions this court for review of the trial court's order summarily denying his successive petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Michael has not met his burden of establishing such abuse here. ¶2 Michael was convicted after a 1993 jury trial of second-degree murder and four counts of aggravated assault. The trial court sentenced him to concurrent prison terms for the four aggravated-assault convictions, the longest of which was fifteen years, to be served consecutively to a twenty-year prison term for murder. We affirmed his convictions and sentences on appeal. State v. Michael, No. 2 CA-CR 93-0366 (memorandum decision filed May 9, 1995). ¶3 Michael filed his most-recent notice of and petition for post-conviction relief in November 2012, arguing that his consecutive sentences violate double jeopardy. The trial court summarily dismissed the petition, finding the claim precluded pursuant to Rule 32.2(a). This petition for review followed. Michael previously has sought post-conviction relief at least six times, each time raising this sentencing claim. Each time, the trial court has rejected the claim, and, when Michael timely sought review, this court has denied relief. State v. Michael, No. 2 CA-CR 2011-0233-PR (memorandum decision filed Nov. 9, 2011); State v. Michael, No. 2 CA-CR 2010-0182-PR (memorandum decision filed Sept. 3, 2010); State v. Michael, No. 2 CA-CR 2005-0033-PR (decision order filed July 29, 2005); State v. Michael, No. 2 CA-CR 2001-0484-PR (memorandum decision filed Mar. 28, 2002); State v. Michael, No. 2 CA-CR 99-0319-PR (memorandum decision filed Jan. 11, 2000); State v. Michael, No. 2 CA-CR 96-0227-PR (memorandum decision filed Mar. 20, 1997). ¶4 To the extent Michael argues on review that our most recent memorandum decision rejecting his sentencing claim is incorrect, that decision is not subject to collateral attack in a successive Rule 32 proceeding. See Ariz. R. Crim. P. 32.2(a)(2); see also Ariz. R. Crim. P. 32.9(g) (permitting petition for review "of an appellate court decision" pursuant to Rule 31.19, Ariz. R. Crim. P.); cf. Stewart v. Smith, 202 Ariz. 446, ¶ 11, 46 P.3d 1067, 1071 (2002) (Rule 32.2 is "designed . . . to prevent endless or nearly endless reviews of the same case in the same trial court"). Michael additionally contends his claim is not precluded because the twenty-year sentence for murder has expired and he is now being held beyond the expiration of that sentence because the consecutive sentences for aggravated assault are improper. See Ariz. R. Crim. P. 32.1(d), 32.2(b). But that exception to preclusion does not apply here; even were we to conclude Michael's consecutive sentences are improper, his consecutive prison terms have not expired. His sentencing claim was precluded when he first raised it over seventeen years ago. It remains precluded. ¶5 Although review is granted, relief is denied.
In all but one of the memorandum decisions rejecting Michael's claim, we have found the claim precluded. We rejected the claim on its merits in 2002, concluding that recent opinions by this court and our supreme court did not warrant relief. State v. Michael, No. 2 CA-CR 2001-0484-PR, ¶ 3-6 (memorandum decision filed Mar. 28, 2002); see also Ariz. R. Crim. P. 32.1(g), 32.2(b). Additionally, Michael apparently sought and was denied post-conviction relief on this claim in 2011. He did not timely seek review of that ruling.
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GARYE L. VÁSQUEZ, Presiding Judge
CONCURRING: ____________
PHILIP G. ESPINOSA, Judge
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VIRGINIA C. KELLY, Judge