Opinion
No. 1 CA-CR 18-0897 PRPC
09-17-2019
STATE OF ARIZONA, Respondent, v. DOUGLAS DONTAE SMITH, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Andrea L. Kever Counsel for Respondent Douglas Dontae Smith, Florence Petitioner
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Petition for Review from the Superior Court in Maricopa County
No. CR2013-435355-001
The Honorable Paula A. Williams, Judge Pro Tempore
REVIEW GRANTED AND RELIEF DENIED
COUNSEL Maricopa County Attorney's Office, Phoenix
By Andrea L. Kever
Counsel for Respondent Douglas Dontae Smith, Florence
Petitioner
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in which Judge Jennifer M. Perkins and Judge David D. Weinzweig joined. HOWE, JUDGE:
¶1 Douglas Dontae Smith petitions this Court for review from the dismissal of his petition for post-conviction relief, filed pursuant to Arizona Rule of Criminal Procedure ("Rule") 32. We have considered the petition for review and, for the reasons stated, grant review but deny relief.
FACTS AND PROCEDURAL HISTORY
¶2 After pleading guilty to attempted sexual assault and attempted kidnapping, Smith was sentenced in January 2014 to 3.5 years' incarceration followed by lifetime probation. Smith was released from prison in June 2017, and in December 2017, the State petitioned the trial court to revoke Smith's probation. The court did so in January 2018 and imposed a five-year prison term.
¶3 In October 2018, Smith petitioned for post-conviction relief, challenging the prison sentence imposed in 2014. Smith also claimed defense counsel was ineffective for failing to inform Smith "that he was going to be put on special probation[.]" The trial court summarily dismissed the petition.
Smith did not file a notice of post-conviction relief. As did the trial court, we consider the petition to be the notice required by Rule 32.4(a)(1). --------
DISCUSSION
¶4 On review, Smith reiterates his challenge to the 2014 sentencing and, for the first time, claims he "is challenging his current probation violation in this case[.]" We review for an abuse of discretion, State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19 (2012), and find none.
¶5 As for the propriety of the 2014 sentencing and defense counsel's representation of Smith, Smith's request for post-conviction relief was untimely by over four years. Ariz. R. Crim. P. 32.4(a)(2)(C). Regarding the January 2018 revocation of probation, Smith filed his Rule 32 petition approximately six months late. See id. Further, Smith presents no substantive argument on review to support his challenge to the trial court's finding of a probation violation or its subsequent revocation order. The trial court acted within its discretion in dismissing the untimely Rule 32 proceeding. See State v. Rosario, 195 Ariz. 264, 266 ¶ 7 (App. 1999).
¶6 Accordingly, we grant review but deny relief.