Opinion
2 CA-CR 2023-0087-PR
06-28-2023
The State of Arizona, Appellee, v. Jeffrey Noem Veta, Appellant.
Jeffrey Noem Veta, Florence In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR052826 The Honorable Christopher Browning, Judge
Jeffrey Noem Veta, Florence In Propria Persona
Presiding Judge Brearcliffe authored the decision of the Court, in which Judge Eckerstrom and Judge Kelly concurred.
MEMORANDUM DECISION
BREARCLIFFE, PRESIDING JUDGE
¶1 Jeffrey Veta seeks review of the trial court's ruling summarily dismissing his successive post-conviction proceeding and his motion for rehearing, filed pursuant to Rule 32, Ariz. R. Crim. P. We review a court's denial of post-conviction relief for an abuse of discretion. State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). We find no such abuse here.
¶2 After a jury trial in 2004, Veta was convicted of continuous sexual abuse of a child, involving or using minors in drug offenses, and two counts of sexual conduct with a minor, all dangerous crimes against children. The trial court sentenced him to consecutive, twenty-year prison terms for each count. In 2008, we affirmed his convictions and sentences on appeal. State v. Veta, No. 2 CA-CR 2004-0251 (Ariz. App. June 30, 2008) (mem. decision). Veta twice sought and was denied post-conviction relief, and this court granted review but denied relief from the court's decisions in those proceedings. State v. Veta, No. 2 CA-CR 2006-0069-PR (Ariz. App. Sept. 26, 2007) (mem. decision); State v. Veta, No. 2 CA-CR 2013-0386-PR (Ariz. App. June 30, 2014) (mem. decision).
¶3 In November 2022, Veta filed a notice of post-conviction relief, seeking relief under Rule 32.1(g) and (h). He argued that A.R.S. § 36-2852 ("Proposition 207") constitutes a significant change in the law, rendering invalid his conviction under A.R.S. § 13-3409(A)(2) (involving or using minors in drug offenses, including A.R.S. § 13-3405, which prohibits the possession, use, production, sale or transportation of marijuana). Noting that he was not seeking expungement, Veta instead argued that because § 36-2852(A)(1) decriminalized possession of one ounce or less of marijuana, his conviction under § 13-3409 could no longer stand. He also asserted that he had raised his claim "within a reasonable time of his first learning of [it] after the 'Lexis Nexis' app was added to the ADC inmate tablet program."
Proposition 207, a voter-passed initiative entitled the "Smart and Safe Arizona Act," legalized certain conduct related to the recreational use, cultivation, and sale of marijuana and provides for expungement of records for specific marijuana-related offenses. See A.R.S. §§ 36-2850 to 36-2865.
¶4 The trial court dismissed Veta's notice in December 2022. In its ruling, the court rejected Veta's assertion that his notice was timely, noting that he had filed it "nearly two years" after the "new law" he relied upon (Proposition 207) was enacted in 2020. The court concluded Veta had not brought his claim within a "reasonable time" after learning of its existence. See Ariz. R. Crim. P. 32.2(b). It specifically noted that Veta's claim that he had learned about the "new" statute after the "LexisNexis app" became available in the prison was "both vague as to the specific date he discovered it and insufficient as a reason for delay, as prisoners have had other means of researching changes in [the] law prior to the addition of a new more helpful application." The court nonetheless addressed Veta's claim on the merits, ultimately concluding that Proposition 207 "absolutely does not legalize the distribution of marijuana to minors. Just as adults of legal drinking age may not provide alcohol to minors, adults may not sell, transfer, or offer marijuana to a minor regardless of their new right to possess it legally in small quantities." The court additionally noted that Veta's conviction under § 13-3409 was not for his "personal possession, but for providing the substance to a minor."
In January 2023, the trial court denied Veta's motion to vacate its December ruling. In that motion, he asserted the court's December order was invalid because it was not signed. Because he does not specifically reassert that argument on review, we do not address it further.
¶5 In his motion for rehearing, Veta claimed that the trial court erred by failing to determine that adults, because of "their new substantive right to legally possess marijuana in small quantities-no longer meet the underlying means for criminal liability under A.R.S. § 13-3409(A)(2) when the quantity sold, transferred, or offered to a minor is below the legal threshold of one ounce or less." Veta acknowledged that § 36-2851(5) provides that Chapter 36 "[d]oes not allow the sale, transfer or provision of marijuana or marijuana products to an individual who is under twenty-one years of age." As we understand his argument, however, he asserted Chapter 36 does not specifically prohibit the transfer of marijuana to a minor. Thus, he reasoned, he is entitled to relief because a person does not involve a minor in a drug offense by giving that minor marijuana. The court denied Veta's motion for rehearing in March 2023, reaffirming its previous dismissal of his notice of post-conviction relief. This petition for review followed.
¶6 On review, Veta argues the trial court erred both by finding his claim untimely and by denying it on the merits. He "incorporate[s] by reference" his motion for rehearing "in its entirety," which he attached as an appendix to his petition for review. Rule 32.16(d) provides that a petition for review "must not incorporate any document by reference, except the appendix." However, this procedure is not intended to replace petitioner's explanation of the "reasons why the appellate court should grant the petition," as Rule 32.16(c)(2)(D) requires. And, in fact, Veta's petition for review does not contain any argument explaining why we should grant his petition. Accordingly, insofar as Veta attempts to substitute his motion for rehearing in place of an argument on review, we note that this procedure does not comply with Rule 32.16(c)(2)(D) and (d).
¶7 In any event, the trial court properly denied Veta's notice as untimely. In the "issues presented for review" portion of his petition, Veta asserts that the court relied on "the mere passage of time" to find his notice time-barred, and that he is thus entitled to relief under State v. Reed, 252 Ariz. 236, ¶¶ 13-15 (App. 2021). "Claims for relief based on Rule 32.1(b) through (h) are not subject to preclusion under Rule 32.2(a)(3), but they are subject to preclusion under Rule 32.2(a)(2)." Ariz. R. Crim. P. 32.2(b). "However, when a defendant raises a claim that falls under Rule 32.1(b) through (h) in a successive or untimely post-conviction notice, the defendant must explain the reasons for not raising the claim in a previous notice or petition, or for not raising the claim in a timely manner." Id. If that explanation was not "sufficient," the court could summarily dismiss the notice. Id. The court may determine that an issue is precluded "[a]t any time." Id.
In Reed, the defendant sought post-conviction relief under Rule 33.1(c) and (h) in a successive petition filed nearly four years after he had been placed on probation. 252 Ariz. 236, ¶¶ 4, 13. The trial court rejected the petition as untimely. Id. ¶ 4. Another division of this court granted relief on review, concluding "the passage of time alone cannot preclude relief" on claims under Rule 33.1(c) or (h) and the trial court "must consider whether the delay is reasonable." Id. ¶ 14. The court explained that the trial court should consider, among other things, "the consequences of a failure to address the merits of the claim and the prejudice to the State or victim." Id. The state conceded error in Reed and did not assert prejudice, and the court thus concluded "that when a defendant pleads guilty to an offense not cognizable under Arizona law, an illegal-sentence claim under Rule 33.1(c) or actual-innocence claim under Rule 33.1(h) is not time-barred if there is no evidence presented beyond the mere passage of time to suggest unreasonable delay." Id. ¶¶ 7 & 14-15.
¶8 Absent a sufficient explanation for a delayed filing, however, there is no basis to conclude a defendant, as required by Rule 32.4(b)(3)(B), brought a claim "within a reasonable time" after discovering it. See State v. Pope, 130 Ariz. 253, 256 (1981) (defendant has "heavy burden in showing the court why the non-compliance should be excused"). The trial court here determined that Veta's explanation that he had not learned about the "new" statute until the "LexisNexis app" became available in the prison was not a sufficient reason to explain his untimely filing, a determination within the court's discretion. See Ariz. R. Crim. P. 32.2(b). And, as previously noted, the court also provided specific reasons why it found Veta's explanation for the delay both vague and insufficient.
¶9 Accordingly, unlike Reed, the trial court here did not rely on "the passage of time alone" in determining that Veta's explanation for his untimely filing was insufficient under Rule 32.2(b). Reed, 252 Ariz. 236, ¶ 14. Moreover, also unlike Reed, the state has not expressly conceded error. Id. ¶¶ 7, 9, 13, 16. Because the court did not err by denying Veta's claim based on his failure to adequately explain the reasons for his untimely filing, we decline to address his underlying claim on the merits.
Although the state did not file a response to Veta's petition for review, we decline to treat that as a confession of error. See State v. Healer, 246 Ariz. 441, n.5 (App. 2019).
¶10 Accordingly, we grant review but deny relief.