Opinion
2 CA-CR 2024-0022-PR
05-21-2024
The State of Arizona, Respondent, v. Donald Ray Palmer, Petitioner.
Donald Ray Palmer, Buckeye In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20050892001 The Honorable Renee L.K. Hampson, Judge Pro Tempore
Donald Ray Palmer, Buckeye In Propria Persona
Judge O'Neil authored the decision of the Court, in which Vice Chief Judge Staring and Judge Sklar concurred.
MEMORANDUM DECISION
O'NEIL, JUDGE
¶1 Petitioner Donald Palmer seeks review of the trial court's order summarily dismissing his successive petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. State v. Martinez, 226 Ariz. 464, ¶ 6 (App. 2011). Palmer has not met his burden of establishing such abuse here.
¶2 After a 2007 jury trial, Palmer was convicted of attempted first-degree murder, drive-by shooting, and aggravated assault. The trial court sentenced him to concurrent life prison terms described in the sentencing minute entry as being without the possibility of release for twenty-five years; however, the court stated at sentencing that Palmer "is sentenced to life in prison with the possibility of parole after 25 years." We affirmed Palmer's convictions and sentences on appeal. State v. Palmer, No. 2 CA-CR 2007-0118 (Ariz. App. Sept. 18, 2008) (mem. decision). Thereafter, Palmer sought and was denied post-conviction relief multiple times. See State v. Palmer, No. 2 CA-CR 2018-0218-PR (Ariz. App. Jan. 10, 2019) (mem. decision); State v. Palmer, No. 2 CA-CR 2017-0189-PR (Ariz. App. Oct. 25, 2017) (mem. decision); State v. Palmer, No. 2 CA-CR 2010-0100-PR (Ariz. App. June 25, 2010) (mem. decision).
¶3 In August 2022, the Arizona Supreme Court granted review of the dismissal of his most recent Rule 32 proceeding, initiated in July 2021, and remanded the case to the trial court for further proceedings in light of the parties' agreement that Palmer's "sentence confers parole eligibility and that he should be certified as eligible for parole upon the service of 25 years." Two months later, Palmer filed the current petition for post-conviction relief. He asserted a claim of newly discovered material facts based upon him learning of the parole discrepancy and that he would serve a "flat time" sentence. He also asserted several claims of ineffective assistance of trial and Rule 32 counsel, related to both his parole eligibility and his rejection of a plea agreement based on the erroneous parole advice.
¶4 On March 9, 2023, pursuant to the Arizona Supreme Court's remand order, the trial court clarified that Palmer's sentence was "life in prison with the possibility of parole after twenty-five calendar years, concurrently, on each count, nunc pro tunc to April 9, 2007." Palmer filed a motion for reconsideration, which the trial court denied. Palmer then filed a notice of appeal with this court, but he subsequently requested that we dismiss the appeal as moot, which we did.
¶5 In its response to Palmer's current Rule 32 petition, the state asserted that his claims were "untimely, precluded, and meritless." In his reply, Palmer argued that he "never agreed" the trial court's "intent was to impose parole" and the court's "intent should be litigated." In a supplement filed several months later, Palmer also seemed to challenge the legality of his sentence, arguing that the court never found he had at least two prior dangerous and serious convictions not committed on the same occasion.
¶6 In October 2023, the trial court summarily dismissed Palmer's petition. The court determined that his claim of newly discovered material facts had been previously raised and that Palmer had in fact received relief on it, making it precluded under Rule 32.2(a)(2). As to the claim of ineffective assistance of counsel related to the plea agreement, the court noted that Palmer "had knowledge regarding his parole ineligibility in 2018 and 2021, when he filed his third and fourth" Rule 32 petitions and therefore could have raised this claim earlier but failed to do so. The court further determined that Palmer's ineffective assistance of counsel claims against both trial and Rule 32 counsel were precluded under Rule 32.2(a)(3). As to the illegal sentencing claim, the court determined that it was untimely raised, Palmer had failed to state any reasons for not raising it in a previous petition or in a timely matter, and Palmer had in fact raised a similar claim in his first and third Rule 32 petitions and it was therefore precluded under Rule 32.2(a)(2). Two months later, Palmer filed a motion for reconsideration. The trial court denied his motion for reconsideration. This petition for review followed.
Palmer first filed a notice of appeal, but because he had failed to file a petition for review in compliance with Rule 32.16, we dismissed it.
¶7 On review, Palmer challenges the trial court's March 2023 resentencing order and its October 2023 order dismissing his Rule 32 petition. However, he cannot challenge the resentencing order as part of this Rule 32 proceeding, which was initiated before the resentencing occurred. See Ariz. R. Crim. P. 32.1 (scope of Rule 32 relief), 32.16(a)(1) (no later than thirty days after entry of trial court's decision on Rule 32 petition or motion for rehearing or dismissal of Rule 32 notice, aggrieved party may petition for review); cf. State v. Rosales, 205 Ariz. 86, ¶ 8 (App. 2003) (claim of ineffective assistance at resentencing separate from claim of ineffective assistance of appellate counsel and should be litigated in different Rule 32 proceeding initiated by filing separate Rule 32 notice). His petition for review from the order dismissing his Rule 32 petition is also arguably untimely. See Ariz. R. Crim. P. 32.14(a), 32.16(a)(1) . Nevertheless, the deadlines for filing a petition for review are not jurisdictional. See State v. Pope, 130 Ariz. 253, 255 (1981). We therefore address his claims related to the October 2023 order.
¶8 As to that order, Palmer asserts the trial court erred by concluding his claims were "untimely and precluded." He argues that the court failed to consider "the confusion surrounding the elimination of parole" and "Palmer's sentencing process that was base[d] on false and misleading information." He further contends that he only learned of the parole discrepancy on November 5, 2019, and then again on April 12, 2021, and therefore could not have raised his claims sooner.
In support of his argument, Palmer relies on an unpublished report and recommendation from a federal district court. See Viramontes v. Ryan, No. CV-16-00151-TUC-RM (BPV) (D. Ariz. May 4, 2018) (report and recommendation), adopted in part; rejected in part, No. CV-16-00151-TUC-RM (D. Ariz. Feb. 12, 2019) (order). That decision, however, is not binding upon us. See State v. Gates, 118 Ariz. 357, 359 (1978). It is also distinguishable from this case because, as discussed above, Palmer has been granted relief on his parole claim.
¶9 Contrary to Palmer's assertion that he only learned of the parole discrepancy in 2019, he raised that issue-framed as claims of an illegal sentence and ineffective assistance of counsel-in his third Rule 32 petition filed in May 2018. He also sought to raise that issue-this time as a claim of newly discovered material facts-in his fourth Rule 32 notice filed in April 2021. In fact, in the fourth proceeding, the Arizona Supreme Court granted review, and the trial court clarified that he was eligible for parole after serving twenty-five years. Thus, the trial court properly found that his previously adjudicated claims were precluded in this proceeding under Rule 32.2(a)(2).
¶10 Moreover, Palmer's claims of ineffective assistance of counsel were not timely asserted. See Ariz. R. Crim. P. 32.4(b)(3)(A) (requiring defendant to file notice for Rule 32.1(a) claim within later of ninety days after oral pronouncement of sentence or thirty days after issuance of appellate mandate); State v. Petty, 225 Ariz. 369, ¶ 11 (App. 2010) (ineffective assistance claim raised under Rule 32.1(a)). Although the trial court was required to excuse the untimeliness if Palmer adequately explained why the failure to timely file a notice was not his fault, see Ariz. R. Crim. P. 32.4(b)(3)(D), the court concluded that he had failed to do so. While we appreciate "the confusion surrounding the elimination of parole" and Palmer's own sentencing, Palmer has failed to explain why he could not have raised his new claims as part of his third or fourth proceeding. We therefore cannot say the court abused its discretion.
¶11 Palmer also seems to reassert his claim that the trial court erred in enhancing his sentence because he "only had one prior conviction." But the trial court properly found that claim untimely, assuming it were raised as one of ineffective assistance, see Ariz. R. Crim. P. 32.4(b)(3)(A), (D), and precluded, assuming it were raised as an illegal sentence claim, see Ariz. R. Crim. P. 32.2(b) (when defendant raises Rule 32.1(b)-(h) claim in successive or untimely notice, defendant must explain reasons for not raising claim in previous notice or petition or in timely manner).
¶12 Accordingly, we grant review but deny relief.