Opinion
1 CA-CR 22-0609 PRPC
06-06-2023
STATE OF ARIZONA, Respondent, v. RODNEY DAN MYERS, Petitioner.
Maricopa County Attorney's Office, Phoenix By Krista Wood Counsel for Respondent. Rodney Dan Myers, Florence Petitioner.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR2013-105273-001 The Honorable Geoffrey H. Fish, Judge.
APPEARANCES
Maricopa County Attorney's Office, Phoenix By Krista Wood Counsel for Respondent.
Rodney Dan Myers, Florence Petitioner.
Vice Chief Judge David B. Gass delivered the decision of the Court, in which Presiding Judge Brian Y. Furuya and Judge Andrew M. Jacobs joined.
MEMORANDUM DECISION
PER CURIAM:
¶1 Rodney Dan Myers petitions this court for review from the dismissal of his untimely petition for post-conviction relief. We have considered the petition for review and, for the reasons stated, grant review and deny relief but modify the superior court's sentencing order as discussed in paragraph 7.
¶2 A grand jury indicted Myers on one count of sexual abuse and three counts of sexual conduct all with a minor under the age of 15 and all dangerous crimes against children. Myers pled guilty to two counts of molestation of a child and two counts of attempted sexual conduct with a minor. In the plea agreement, the State agreed not to allege Myers's prior felony convictions.
¶3 Following the terms of the plea agreement, the superior court imposed consecutive 19-year flat-time prison sentences on the two molestation counts, followed by lifetime probation on the two attempt counts. In 2014 and 2019, Myers filed two unsuccessful post-conviction relief petitions. Then in 2022, he untimely filed his third petition. The superior court summarily dismissed the 2022 petition, and Myers now seeks review.
¶4 This court reviews the dismissal of a petition for post-conviction relief for an abuse of discretion. State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19 (2012). On review, Myers argues the State violated his constitutional rights and breached the plea agreement when the State argued Myers's prior felony convictions were aggravating factors. See Ariz. R. Crim. P. 33.1(a) (constitutional rights), (c) (plea agreement).
¶5A defendant must bring claims under Rule 33.1(a) within 90 days of oral pronouncement of sentence unless the defendant adequately explains why the failure to file a timely notice was not the defendant's fault. Ariz. R. Crim. P. 33.4(b)(3)(A), (D). Because the superior court entered judgment and imposed sentencing in February 2014, Myers's notice was untimely by eight years. The superior court found Myers's notice untimely, and Myers does not challenge that finding on review. Even so, the State did not breach the plea agreement. The plea agreement dismissed the State's allegation of Myers's prior convictions for the purpose of sentencing Myers as a non-dangerous, repetitive offender under A.R.S. § 13-703.C. Such a dismissal does not bar the use of his prior convictions as aggravating factors for purposes of sentencing Myers for dangerous crimes against children under A.R.S. § 13-701.D.11. State v. Jackson, 130 Ariz. 195, 196 (App. 1981) ("The court is not required to disregard a prior criminal record just because the allegation of the prior has been dismissed."). Myers, thus, fails to raise a colorable claim.
¶6 As to Myers's constitutional claims, he waived all non-jurisdictional defects, including the violation of constitutional rights when he pled guilty. See State v. Chavez, 243 Ariz. 313, 318 ¶ 14 (App. 2017). The State, thus, did not violate Myers's constitutional rights because he waived his challenge and because the State did not breach the plea agreement.
¶7 This court notes page 2 of the February 14, 2014 sentencing order contains a clerical error regarding counts 3 and 4 (the attempt counts). Myers pled guilty to two counts of attempted sexual conduct with a minor under the age of 15. Both the plea agreement and sentencing order incorrectly identify counts 3 and 4 as class 2 felonies. A completed offense of sexual conduct with a minor under the age of 15 is a class 2 felony. A.R.S. § 13-1405.B. But Myers pled to an attempted offense, making the counts class 3 felonies. A.R.S. § 13-1001.C.2. Because the plea agreement includes the correct sentencing range for a class 3 felony and the superior court sentenced Myers accordingly, we find no prejudice to Myers. We, however, modify page 2 of the February 14, 2014 sentencing order by striking "Class 2 Felony" after counts 3 and 4 and inserting "Class 3 Felony".
¶8 We grant review and deny relief but modify the superior court's sentencing order consistent with paragraph 7 of this decision.