Opinion
No. 2 CA-CR 2018-0027-PR
05-30-2018
THE STATE OF ARIZONA, Respondent, v. JERRY FLYNN WALKER, Petitioner.
Jerry Flynn Walker, Buckeye 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NOT FOR PUBLICATION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 Pima County
No. CR20073435002
The Honorable Howard Fell, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
Jerry Flynn Walker, Buckeye
In Propria Persona
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 Jerry Walker seeks review of the trial court's ruling denying his untimely and successive petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Walker has not shown such abuse here.
¶2 After a jury trial, Walker was convicted of sale of a narcotic drug and possession of a narcotic drug for sale. The possession count was dismissed after trial, and the court imposed a 15.75-year prison term for the sale count. We affirmed his conviction and sentence on appeal. State v. Walker, No. 2 CA-CR 2012-0128 (Ariz. App. Mar. 13, 2013) (mem. decision). On two prior occasions, Walker sought and was denied post-conviction relief, and this court denied relief on review. State v. Walker, No. 2 CA-CR 2016-0070-PR (Ariz. App. May 25, 2016) (mem. decision); State v. Walker, No. 2 CA-CR 2014-0130-PR (Ariz. App. Jul. 14, 2014) (mem. decision). In February 2017, Walker again sought and was denied post-conviction relief. He did not seek review of that ruling.
The trial court had initially granted Walker a new trial on the possession count and sentenced him to a 15.75-year prison term for sale of a narcotic drug. However, the court later granted his motion to vacate that judgment, a decision we reversed on appeal. State v. Walker, No. 2 CA-CR 2011-0200 (Ariz. App. Feb. 15, 2012) (mem. decision). On remand, the trial court granted the state's motion to dismiss the possession count and again sentenced Walker to a 15.75-year prison term for the sale count. --------
¶3 In November 2017, Walker filed a petition for writ of habeas corpus arguing his sentence was improper because the trial court had not announced at sentencing his "term of community supervision" and because he "was sentenced to imprisonment rather than to the Department of Corrections." He also argued the court had erred because it did not "pronounce in his oral judgment and sentence" which prior convictions the court had relied on to enhance his sentence. Walker asserted he was entitled to raise these issues because he had only recently discovered them, characterizing them as based on newly discovered evidence pursuant to Rule 32.1(e). Correctly treating Walker's filing as a petition for post-conviction relief, see Ariz. R. Crim. P. 32.3(b), the court denied relief, finding his underlying claims precluded as waived and noting that its sentencing pronouncements did not constitute "evidence" as contemplated by Rule 32.1(e). This petition for review followed.
¶4 On review, Walker argues the trial court erred in determining that "sentences are not evidence." Even if we agreed with Walker that he has identified any error in his sentence, the purported error was apparent at the time of his sentencing. A claim of newly discovered material facts does not encompass newly discovered legal theories. See generally State v. Saenz, 197 Ariz. 487, ¶ 7 (App. 2000) (to establish claim of newly discovered evidence, defendant must show "that the evidence was discovered after trial although it existed before trial; that it could not have been discovered and produced at trial through reasonable diligence; that it is neither cumulative nor impeaching; that it is material; and that it probably would have changed the verdict"). And Walker's sentencing claims cannot be raised in this untimely proceeding. See Ariz. R. Crim. P. 32.4(a)(2)(A).
¶5 We grant review but deny relief.