Opinion
No. 2 CA-CR 2018-0060-PR
05-22-2018
THE STATE OF ARIZONA, Respondent, v. IVE SULLIVAN, Petitioner.
Ive Sullivan, 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NOT FOR PUBLICATION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 Maricopa County
No. CR2013455906001DT
The Honorable Warren J. Granville, Judge
REVIEW GRANTED; RELIEF DENIED
Ive Sullivan, Tucson
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Espinosa concurred. STARING, Presiding Judge:
¶1 Ive Sullivan seeks review of the trial court's order summarily dismissing his successive and untimely 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 (App. 2007). We find no such abuse here.
We apply the current version of Rule 32, Ariz. R. Crim. P., as doing so will neither "be infeasible [n]or work an injustice." Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017).
¶2 Sullivan pled guilty to one count of weapons misconduct in 2014. After finding he had two prior felony convictions, the trial court sentenced him to the presumptive ten-year prison term. Sullivan filed a timely notice of post-conviction relief, and the court summarily dismissed his pro se petition, filed after appointed counsel notified the court he had reviewed the record but found no claims to raise pursuant to Rule 32. This court denied relief on review from the trial court's dismissal of that petition. State v. Sullivan, No. 1 CA-CR 15-0817 PRPC (Ariz. App. May 11, 2017) (mem. decision). In May 2017, Sullivan filed his second notice of post-conviction relief, which the court summarily dismissed.
¶3 In July 2017, Sullivan filed the underlying Rule 32 petition, asserting that his sentence had been aggravated illegally. The trial court summarily dismissed this petition too, which it deemed a notice of post-conviction relief, and the current petition for review followed. In its ruling, the court noted that because Sullivan's claim fell under Rule 32.1(a) and (c), it could not be raised in an untimely proceeding and was precluded, see Ariz. R. Crim. P. 32.2(a)(3), (b), 32.4(a)(2)(A); the court also found, in any event, that Sullivan's claim had no merit.
¶4 On review, Sullivan contends the trial court erred by dismissing his most recent post-conviction proceeding as untimely. However, as the trial court correctly found, Sullivan's claim is subject to summary dismissal because an untimely, successive notice is limited to claims raised pursuant to Rule 32.1(d) through (h). See Ariz. R. Crim. P. 32.2(a)(3), (b), 32.4(a)(2)(A); see also State v. Lopez, 234 Ariz. 513, ¶ 5 (App. 2014). Nor does Sullivan meaningfully argue his claim falls within Rule 32.1(d) through (h); instead, his claim falls within Rule 32.1(a) and (c), as the court correctly noted. We thus find no abuse of discretion in the court's summary dismissal of Sullivan's most recent Rule 32 proceeding.
Sullivan suggests the underlying proceeding was timely because it was filed two weeks after this court's June 27, 2017, mandate issued in his petition for review from the trial court's dismissal of his first post-conviction proceeding. State v. Sullivan, No. 1 CA-CR 15-0817 PRPC (Ariz. App. June 27, 2017) (mandate). However, as the court correctly concluded, and as set forth in this decision, Sullivan's claim is nonetheless precluded and untimely.
Although Sullivan briefly refers to newly discovered evidence in a partial sentence following his signature on the final page of his petition for review, we do not consider this oblique reference, apparently raised for the first time on review. Cf. State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (appellate court does not consider issues raised for first time in petition for review). --------
¶5 Accordingly, we grant review but deny relief.