Opinion
No. 2 CA-CR 2014-0101-PR
06-11-2014
THE STATE OF ARIZONA, Respondent, v. TODD EMERY SMITH, Petitioner.
William G. Montgomery, Maricopa County Attorney By Arthur Hazelton, Deputy County Attorney, Phoenix Counsel for Respondent Law Office of Cynthia A. Brubaker, Tempe By Cynthia A. Brubaker 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Maricopa County
No. CR2005114372001DT
The Honorable Harriett Chavez, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By Arthur Hazelton, Deputy County Attorney, Phoenix
Counsel for Respondent
Law Office of Cynthia A. Brubaker, Tempe
By Cynthia A. Brubaker
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Brammer concurred. KELLY, Presiding Judge:
The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶ 1 Petitioner Todd Smith seeks review of the trial court's order dismissing his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Smith has not sustained his burden of establishing such abuse here.
¶2 Pursuant to a plea agreement, Smith was convicted of attempted molestation of a child, public sexual indecency to a minor, and attempted sexual conduct with a minor. In 2006, the trial court imposed an aggravated, fifteen-year prison sentence on the attempted molestation charge and suspended the imposition of sentence on the remaining two charges, placing Smith on concurrent, lifetime terms of probation.
¶3 Smith thereafter sought and received post-conviction relief on his claim that the trial court had erred in imposing an aggravated sentence on the attempted molestation charge when it had not stated the aggravating circumstances it found proven. The court granted a resentencing, which was held in July 2007, and imposed the same sentence and terms of probation.
¶ 4 In 2011, Smith filed another notice of post-conviction relief. He acknowledged therein that the notice was untimely, but specifically stated he was not raising a claim pursuant to Rule 32.1(d), (e), (f), (g), or (h), but rather was asserting "a substantive due process claim . . . arising from imposition of an illegal sentence." The trial court specified it was not taking any position on Smith's claim, but ruled it would allow the "matter to proceed." In his petition, Smith maintained that no sentencing statute permitted imposition of an aggravated term of fifteen years' imprisonment for his offense and that the maximum term he could have received was seven years, apparently arguing his offense was not properly a dangerous crime against children. The court determined that Smith's claims, raised under Rule 32.1(a) and (c), could not be raised in an untimely proceeding under Rule 32.4(a).
¶5 On review, Smith repeats his arguments below as to the purported sentencing error relating to dangerous crimes against children and argues his claim is not precluded pursuant to Rule 32.2(a). He further contends "Rule 32.4(a), as interpreted by the lower court, violates fundamental precepts of due process of law as applied to the facts of this case," arguing that he "deserves adjudication on the merits of the claims asserted" to correct "a manifest injustice." But we agree with the trial court that the clear language of Rule 32.4(a) bars Smith's claim. Under that rule, only claims pursuant to Rule 32.1(d), (e), (f), (g), or (h) may be raised in an untimely notice such as Smith's, which was filed more than four years after resentencing. We have no basis to depart from that rule and decline Smith's invitation to do so.
¶6 Therefore, although we grant Smith's petition for review, we deny him relief.