Opinion
No. 1 CA-CR 19-0240 PRPC
09-29-2020
STATE OF ARIZONA, Respondent, v. BRAD JESS WAICELUNAS, Petitioner.
COUNSEL Yavapai County Attorney's Office, Prescott By Dennis M. McGrane Counsel for Respondent Brad Jess Waicelunas, 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Yavapai County
No. P1300CR20050357 V1300CR820050356
The Honorable Patricia A. Trebesch, Judge, Retired
REVIEW GRANTED; RELIEF GRANTED
COUNSEL Yavapai County Attorney's Office, Prescott
By Dennis M. McGrane
Counsel for Respondent Brad Jess Waicelunas, Florence
Petitioner
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined. MORSE, Judge:
¶1 Brad Waicelunas petitions this court for review from the dismissal of his notice for post-conviction relief, filed pursuant to Arizona Rule of Criminal Procedure ("Rule") 33. This is Waicelunas's second proceeding for post-conviction relief. We have considered the petition for review and, for the reasons stated, grant review and grant relief.
Effective January 1, 2020, our supreme court amended the post-conviction relief rules. State v. Botello-Rangel, 248 Ariz. 429, 430, ¶ 1 n.1 (App. 2020). "The rules relating to defendants who plead guilty are now codified in Rule 33. The amended rules apply in all cases pending on the effective date unless a court determines that applying the rule or amendment would be infeasible or work an injustice." Id. (citation and quotation marks omitted). We apply and cite to the current rules unless otherwise noted. --------
FACTS AND PROCEDURAL BACKGROUND
¶2 Waicelunas pled guilty in 2007 to committing premeditated first-degree murder and felony murder of the same victim, as well as armed robbery, aggravated assault, second-degree burglary, and promoting prison contraband. In accordance with the plea agreement, the superior court sentenced him to concurrent prison terms of natural life for the two murder convictions. The court also sentenced Waicelunas to life without possibility of release for 25 years for the robbery and assault convictions, to be served concurrently with each other but consecutive to his murder sentences, and consecutive terms of 11.25 years for the burglary and 15.75 years for the contraband counts. Waicelunas was sentenced on March 27, 2007. He filed a notice for post-conviction relief that same day, challenging the superior court's authority to retain jurisdiction over the question of restitution after sentencing Waicelunas to a term of imprisonment. That request for post-conviction relief was dismissed by the superior court and is not at issue in this appeal.
¶3 Twelve years later, Waicelunas filed the notice for post-conviction relief at issue. He asserted his convictions for felony murder and premeditated murder of the same victim were unconstitutional and "not waived or precluded as a matter of law." The superior court summarily dismissed Waicelunas's notice for not identifying a "specific exception to preclusion" or explaining why he had waited so long to raise the claim. Waicelunas timely sought review of the court's decision, and we grant review.
DISCUSSION
¶4 We generally will not disturb the superior court's ruling on a petition for post-conviction relief unless the court abused its discretion. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012).
¶5 Waicelunas claims his convictions and sentences violate the Arizona and United States Constitutions. See Rule 33.1(a). Though not raised in this petition, Waicelunas claimed in his notice that his plea was unconstitutionally obtained. The superior court found this argument was precluded. We agree. Under both the current rules, see Rules 33.2(a)(3) and 33.4 (b)(3)(A), and the then-effective counterparts to the pertinent rules, see Rules 32.2(a)(3) (2019) and 32.4(a)(2)(A) (2019), challenges to a guilty plea are precluded if brought in an untimely or successive notice. Accordingly, we reject Waicelunas's challenge to his guilty plea as procedurally improper. State v. Botello-Rangel, 248 Ariz. 429, 432, ¶¶ 8-9 (App. 2020).
¶6 However, Waicelunas appears to raise another argument. He suggests his sentences are not authorized by law. See Rule 33.1(c). At the time Waicelunas filed his notice, Rule 32 precluded this claim. See Rules 32.1(c) (2019) and 32.2(a), (b) (2019). That is no longer the case. See Rule 33.2(b)(1) ("Claims for relief based on Rule 33.1(b) through (h) are not subject to preclusion under Rule 33.2(a)(3) . . . ."); Rule 33.1(b) (providing that Rule 33 allows for relief if a defendant's "sentence as imposed is not authorized by law or by the plea agreement"). The superior court correctly applied the Rules as they existed at the time, but we are tasked with applying the amended Rules in this case unless it "would be infeasible or work an injustice." See Botello-Rangel, 248 Ariz. at 451, ¶ 5 n.1. We see no injustice in applying the recently amended Rule 33 to Waicelunas's claim.
¶7 We note that Rule 33.2(b)(1) requires a defendant to explain why a non-precluded claim was not raised "in a previous notice or petition" or "in a timely manner." As Waicelunas's notice was filed before the rule was amended, he had no reason to provide any such explanation. Though we could remand this matter to provide Waicelunas an opportunity to comply with the requirements of Rule 33.2, we find that remanding this case would result in a waste of judicial resources. Therefore, we exercise our discretion and address the merits of Waicelunas's claim. See State v. Emery, 141 Ariz. 549, 553 (1984) ("To remand in such cases would be inefficient if not futile. Judicial economy requires that we intervene when the record is . . . as clear as it is in the instant case.").
¶8 Waicelunas asserts, and the record confirms, that he has "two convictions for one act" and is "serving life sentences for first-degree murder and felony murder of one person . . . ." A defendant may be convicted of murdering a single victim under both theories of premeditation and commission of a felony. See State v. Dann, 205 Ariz. 557, 576, ¶ 76 (2003) (affirming first-degree murder of single victim under both, alternative theories). But a defendant who murders a single victim may only receive a single conviction and sentence for the homicide. See State v. Williams, 232 Ariz. 158, 161, ¶ 10 (App. 2013) ("[T]he crime of murder of a single victim necessarily results in one conviction and one sentence."). Thus, Waicelunas's dual convictions and sentences for the same murder are inconsistent with Arizona law.
¶9 Though we find that Waicelunas's sentence is unlawful, that error does not justify vacating his plea and his convictions. Supra ¶ 5. Consequently, we grant review, grant relief, combine Waicelunas's convictions for premeditated first-degree murder and felony murder into one, and vacate one of the concurrent natural life sentences. The sentencing minute entry is amended to reflect one conviction of first-degree murder pursuant to A.R.S. § 13-1105(A)(1), (2) and one sentence of imprisonment for natural life for that murder.
CONCLUSION
¶10 For the foregoing reasons, we grant review and grant relief.