Opinion
No. 2 CA-CR 2017-0400-PR
03-21-2018
THE STATE OF ARIZONA, Respondent, v. JESSE LYNN MORRIS, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By E. Catherine Leisch, Deputy County Attorney, Phoenix Counsel for Respondent Guy Brown PLLC, Phoenix By Guy F. Brown Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Maricopa County
No. CR2012131930001SE
The Honorable Bruce R. Cohen, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By E. Catherine Leisch, Deputy County Attorney, Phoenix
Counsel for Respondent
Guy Brown PLLC, Phoenix
By Guy F. Brown
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred.
STARING, Presiding Judge:
¶1 Jesse Morris seeks review of the trial court's order summarily denying his of-right petition for post-conviction relief and motion for rehearing filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb those orders unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Morris has not shown such abuse here.
¶2 Morris pled guilty to sexual conduct with a minor, attempted sexual conduct with a minor, and attempted child molestation. The trial court imposed a twenty-year prison term for sexual conduct with a minor, to be followed by concurrent terms of lifetime probation for the remaining counts.
¶3 More than two years later, Morris filed a notice of post-conviction relief, to which he attached an affidavit avowing he had "prepared, signed, and filed" by mail a notice of post-conviction relief "[a]fter being transferred to the Arizona Department of Corrections." He stated he "did not hear from the [c]ourt for quite some time," but later contacted and retained counsel to represent him in a post-conviction proceeding. The trial court, noting that Morris was raising a claim under Rule 32.1(f), that his failure to timely seek relief was without fault on his part, stated it would allow "this Rule 32 matter to proceed. This allowance does not constitute any expression of opinion on the merits of any of defendant's substantive claims, or that any claims to be raised in the petition are not procedurally precluded."
¶4 Morris then filed a petition for post-conviction relief, claiming his trial counsel had been ineffective (a claim he later withdrew) and his guilty plea was involuntary because he had not been advised that he was waiving his right to have aggravating factors proven to a jury beyond a reasonable doubt. He asserted, without elaboration, that had he been so advised he would have rejected the plea offer and gone to trial. He did not refer to his claim under Rule 32.1(f). The trial court summarily denied relief, noting Morris had not "provide[d] a discernable nexus between the error
alleged and the decisions he made to enter the plea agreement." Morris then filed a motion for rehearing, asserting for the first time that his involuntary plea constituted "structural error." The court denied that motion, and this petition for review followed.
¶5 On review, Morris repeats his claim that his guilty plea was involuntary and asserts he is entitled to an evidentiary hearing. We need not address these arguments because Morris's notice of post-conviction relief was untimely and he has not made a colorable claim he is entitled to file an untimely notice under Rule 32.1(f).
¶6 A pleading defendant like Morris is required to file a notice of post-conviction relief within ninety days of sentencing. A.R.S. § 13-4234(C); Ariz. R. Crim. P. 32.1, 32.4(2)(C). This time limit is jurisdictional. § 13-4234(G); see also State v. Lopez, 234 Ariz. 513, ¶ 8 (App. 2014). Rule 32.1(f), however, entitles a defendant to relief if "the failure to file a notice of post-conviction relief of-right . . . within the required time was not the defendant's fault." In evaluating whether Morris's Rule 32.1(f) claim is colorable and whether he is thus entitled to an evidentiary hearing on that claim, we must assume the facts he has alleged are true. See State v. Watton, 164 Ariz. 323, 328 (1990).
¶7 Even taking as true the statements Morris made in the affidavit attached to his notice of post-conviction relief, he has not shown that his failure to timely seek relief was without fault on his part. He does not assert that he was unaware of the time limits or that he mailed his first notice within ninety days of sentencing, instead stating only that he mailed it after being transferred to the custody of the Department of Corrections without providing a date or even range of dates falling within the ninety-day time limit. And, although the trial court did not address this issue in summarily denying relief, we may affirm the court's ruling on any ground supported by the record. See State v. Banda, 232 Ariz. 582, n.2 (App. 2013).
¶8 We grant review but deny relief.