Opinion
No. 2 CA-CR 2017-0302-PR
03-02-2018
THE STATE OF ARIZONA, Respondent, v. TIMOTHY KEVIN OWENS, Petitioner.
Timothy K. Owens, Tucson In Propria Persona
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NOT FOR PUBLICATION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 Pima County
No. CR20053547
The Honorable Jeffrey T. Bergin, Judge
REVIEW GRANTED; RELIEF DENIED
Timothy K. Owens, Tucson
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Timothy Owens seeks review of the trial court's order summarily dismissing his successive and untimely notice of post-conviction relief. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Owens has not shown such abuse here.
¶2 After a jury trial, Owens was convicted of twenty-two felonies resulting from his involvement in an extensive drug-trafficking enterprise. The trial court sentenced him to six concurrent life terms, describing those sentences variously as "without the possibility of parole for a period of at least 25 years," "without parole for 25 years," or "without parole for a period of at least 25 years," and to various terms of imprisonment on the remaining counts, all to be served concurrently with the life terms. We affirmed his convictions and sentences on appeal. State v. Owens, No. 2 CA-CR 2007-0046 (Ariz. App. Feb. 14, 2008) (mem. decision). Before this proceeding, Owens has twice sought and been denied post-conviction relief. State v. Owens, No. 2 CA-CR 2013-0459-PR (Ariz. App. May 9, 2014) (mem. decision); State v. Owens, No. 2 CA-CR 2010-0293-PR (Ariz. App. Jan. 7, 2011) (mem. decision).
Despite the trial court's reference to "parole" in imposing Owens's life terms, the Arizona legislature "abolished parole for all crimes committed after January 1, 1994," well before Owens's offenses. State v. Valencia, 241 Ariz. 206, ¶ 23 (2016); see also 1993 Ariz. Sess. Laws, ch. 255, § 86. Thus, by stating Owens could be eligible for parole, the court arguably imposed an illegal sentence from which the state did not appeal. Cf. State v. Dawson, 164 Ariz. 278, 283-84 (1990) (appellate court lacks authority to correct illegally lenient sentence absent appeal by state). But Owens has not asserted he is entitled to a parole hearing and been denied one, even assuming such a claim would be cognizable under Rule 32.1. See generally Ariz. R. Crim. P. 32.1(a)-(h). --------
¶3 In June 2017, Owens filed a notice of post-conviction relief in which he asserted that his counsel had advised him he would be eligible for parole after twenty-five years if convicted. He further claimed that, had counsel informed him that parole had been abolished well before he committed his offenses, he would have accepted a plea offer from the state. He argued that counsel's ineffective assistance "could not be discerned" until this proceeding, because the Arizona Department of Corrections (ADOC) had "honored" sentences like his by allowing parole hearings. He contended that ADOC, however, had stopped doing so, in contravention of its own policies. He concluded, therefore, that ADOC's "new interpretation" constituted a significant change in the law, and he was thus eligible for post-conviction relief under Rule 32.1(g).
¶4 The trial court summarily dismissed Owens's notice, stating that the "discovery of the historical changes in Arizona's law preceding his trial is not a 'significant change' justifying consideration of his petition." Instead, the court observed, Owens's "argument is based upon being uninformed of the law as it existed at the time, not that a significant change has occurred." Quoting State v. Spreitz, 202 Ariz. 1, ¶ 4 (2002), the court further concluded Owens's claim of ineffective assistance of counsel was "waived and precluded." This petition for review followed.
¶5 On review, Owens asserts the trial court erred in concluding his claim "is not new" because "the Courts, the Prosecutors and Defense attorneys were also unaware of this issue" as shown by "the Courts [continuing] to sentence defendants to life without the possibility for parole for 25-35 years" even after parole was abolished. But whether Arizona courts and practitioners consistently recognized that parole had been abolished in 1994, see State v. Valencia, 241 Ariz. 206, ¶ 23 (2016); see also 1993 Ariz. Sess. Laws, ch. 255, § 86, is not material to a claim under Rule 32.1(g). To obtain relief under that provision, Owens must show "there has been a significant change in the law that, if applied to the defendant's case, would probably overturn the defendant's conviction or sentence." The law applicable to Owens's life sentences or his eligibility for parole has not changed since he committed his offenses. Owens has cited no authority, and we find none, suggesting that ADOC's alleged alteration of its policies qualifies as a "change in the law."
¶6 As the trial court pointed out, Owens's claim is, essentially, that he had recently discovered he had been misinformed by counsel about the sentences the court could legally impose if he were convicted. But claims of ineffective assistance cannot be raised in an untimely proceeding like this one. See Ariz. R. Crim. P. 32.1(a), 32.4(a)(2)(A). And Rule 32.1(e), which governs claims of newly discovered evidence, does not contemplate a claim of newly discovered evidence of ineffective assistance of counsel, and is instead restricted to "newly discovered material facts . . . [that] probably would . . . change[] the verdict or sentence."
¶7 The trial court did not err in summarily dismissing Owens's notice of post-conviction relief. Therefore, although we grant review, we deny relief.