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State v. Souch

Court of Appeals of Arizona, Second Division

November 15, 2013

The State of Arizona, Respondent,
v.
Gerald C. Souch, Petitioner.

Not for Publication – Rule 111, Rules of the Arizona Supreme Court

Petition for Review from the Superior Court in Maricopa County No. CR0000159749 The Honorable Robert E. Miles, Judge

Gerald C. Souch, Florence In Propria Persona

Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred.

MEMORANDUM DECISION

ECKERSTROM, Judge:

¶1 Gerald Souch petitions this court for review of the trial court's order summarily dismissing his successive petition for postconviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, 4, 166 P.3d 945, 948 (App. 2007). Souch has not met his burden of demonstrating such abuse here.

¶2 In 1987, Souch pled guilty to armed burglary, aggravated assault, and three counts of sexual assault, all dangerous-nature offenses, and was sentenced to consecutive sentences totaling fifty-eight years. We affirmed his convictions and sentences on appeal. State v. Souch, No. 1 CA-CR 11455 (memorandum decision filed Oct. 22, 1987). Souch has since sought post-conviction relief numerous times, most recently in a petition for writ of habeas corpus in which he asserted his sentences had been illegally imposed.

¶3 Treating Souch's petition as a petition for post- conviction relief pursuant to Rule 32, the trial court summarily denied relief. It determined that Souch's sentencing claim is precluded and that, to the extent Souch suggested there had been a significant change in the law, he had not demonstrated "that any cases cited would apply retroactively to [him] considering his convictions were made final in 1988." This petition for review followed the trial court's denial of Souch's motion for reconsideration.

¶4 We agree with the trial court that Souch's sentencing claim is precluded because he could have raised it either on direct appeal or in a previous post-conviction proceeding. Ariz. R. Crim. P. 32.2(a)(3). And he has not identified on review any exception to preclusion. See Ariz. R. Crim. P. 32.2(b). Souch additionally suggests the trial court incorrectly characterized his habeas petition as seeking relief under Rule 32 and therefore could not find his claims precluded. But Rule 32.3 expressly required the court to have done so, because Souch's claim "attack[ed] the validity of his . . . sentence."

¶5 Although review is granted, relief is denied.


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