Opinion
No. 2 CA-CR 2017-0145-PR No. 2 CA-CR 2017-0146-PR (Consolidated)
10-05-2017
THE STATE OF ARIZONA, Respondent, v. CHARLES SCOTT TAYLOR, Petitioner.
COUNSEL Kent P. Volkmer, Pinal County Attorney By Thomas C. McDermott, Deputy County Attorney, Florence Counsel for Respondent Charles Scott Taylor, Florence 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NOT FOR PUBLICATION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. 31.24. Petition for Review from the Superior Court in Pinal County
Nos. S1100CR200701800 and S1100CR200800485
The Honorable Stephen F. McCarville, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Kent P. Volkmer, Pinal County Attorney
By Thomas C. McDermott, Deputy County Attorney, Florence
Counsel for Respondent Charles Scott Taylor, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Chief Judge Eckerstrom and Presiding Judge Vásquez concurred. EPPICH, Judge:
¶1 Charles Taylor seeks review of the trial court's order summarily denying his successive petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb the court's order unless the court clearly abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7, 353 P.3d 847, 848 (2015). Taylor has not met his burden of demonstrating such abuse here.
¶2 After a jury trial, Taylor was convicted (under two cause numbers) of sexual conduct with a minor, sexual abuse, and child molestation, all of a victim under the age of fifteen, and two counts of witness tampering. The trial court sentenced him to concurrent and consecutive prison terms totaling fifty-two years. We affirmed his convictions and sentences on appeal. State v. Taylor, No. 2 CA-CR 2008-0194; No. 2 CA-CR 2008-0195 (Ariz. App. Oct. 14, 2009) (consol. mem. decision). Taylor sought post-conviction relief, which the trial court denied, and this court denied relief on review. State v. Taylor, No. 2 CA-CR 2011-0213-PR; No. 2 CA-CR 2011-0287-PR (Ariz. App. Jan. 10, 2012) (consol. mem. decision).
¶3 In February 2017, Taylor filed a notice of and petition for post-conviction relief raising various claims, including that he was convicted based on false testimony, there was insufficient evidence to sustain his convictions, the trial court was "pervasively biased" against him, the court lacked jurisdiction over him due to errors in the indictment, and statutory amendments after his conviction constituted a significant change in the law applicable to his sentences. He claimed he was innocent and there was newly discovered evidence, and characterized several of his claims as exempt from preclusion because he had not waived them or they were not subject to waiver. Taylor further asserted his failure to timely seek post-conviction relief was without fault on his part. He explained that he had been unable to raise the claims previously or in a timely manner because his Rule 32 counsel failed to raise them and he lacked adequate access to legal resources. The court summarily denied relief, finding his claims precluded. This petition for review followed.
¶4 On review, Taylor reasserts several of his claims and argues the court erred by finding them precluded. The bulk of Taylor's various claims of error do not fall within Rule 32.1(d) through (h) and thus cannot be raised in this untimely proceeding. Ariz. R. Crim. P. 32.4(a). And Taylor is mistaken that he is nonetheless entitled to raise these claims because they constitute "fundamental error," involve jurisdictional defect, or were not waived. See Ariz. R. Crim. P. 32.1(b), 32.4(a) (claim of jurisdictional defect cannot be raised in untimely petition); State v. Lopez, 234 Ariz. 513, ¶¶ 7-8, 323 P.3d 1164, 1166 (App. 2014) (Rule 32.4(a) bars untimely claims not waived under Rule 32.2(a)(3)); cf. State v. Swoopes, 216 Ariz. 390, ¶ 42, 166 P.3d 945, 958 (App. 2007) (fundamental error not excepted from preclusion under Rule 32.2).
To the extent Taylor attempts to incorporate by reference the notice and petition filed below, that procedure is not permitted by our rules. See Ariz. R. Crim. P. 32.9(c)(1)(iv); State v. Hess, 231 Ariz. 80, ¶ 13, 290 P.3d 473, 477 (App. 2012). We limit our review to the arguments raised in Taylor's petition for review. --------
¶5 Taylor does, however, assert that several of his claims fall within exceptions to the timeliness requirement of Rule 32.4(a). He first contends he has raised a claim of newly discovered evidence pursuant to Rule 32.1(e). His claim seems to be based solely on an affidavit included with his petition. In that affidavit, he makes various unsupported assertions, apparently attempting to contradict trial evidence. For example, he asserts that "after sexual intercourse with an adult, injury to a 13 year old girl's vagina is not only common but expected," and "a former gynecologist, who after reading [a report by a sexual assault nurse], confirmed" that the state had made statements in closing argument that were "medically impossible." Even if they were supported by evidence, none of these assertions could reasonably be described as newly discovered evidence under Rule 32.1(e). See State v. Saenz, 197 Ariz. 487, ¶ 7, 4 P.3d 1030, 1032 (App. 2000) (evidence not newly discovered unless "it could not have been discovered and produced at trial through reasonable diligence"). This claim therefore warranted summary rejection. Ariz. R. Crim. P. 32.6(c).
¶6 Taylor also contends that the 2009 "repeal[]" of former A.R.S. § 13-604.01 constitutes a significant change in the law applicable to his case, citing Rule 32.1(g). Although claims under Rule 32.1(g) may be raised in an untimely petition, Ariz. R. Crim. P. 32.4(a), Taylor's claim fails. Section 13-604.01 was not repealed in 2009 as Taylor suggests; it was amended and renumbered to § 13-705. 2008 Ariz. Sess. Laws, ch. 301, §§ 17, 29. Even assuming the 2009 amendment could apply retroactively, Taylor has not explained how it is relevant to his sentence.
¶7 Taylor further asserts he is actually innocent pursuant to Rule 32.1(h). See Ariz. R. Crim. P. 32.4(a) (actual innocence claim can be raised in untimely proceeding). But Taylor has not explained his failure to raise this claim in his first Rule 32 proceeding, in which Taylor filed a pro se petition for post-conviction relief. Because Taylor did not comply with Rule 32.2(b), the trial court was required to summarily deny this claim.
¶8 We grant review but deny relief.