Not For Publication See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24
Petition for Review from the Superior Court in Maricopa County No. CR2003040453001SE The Honorable Sherry K. Stephens, Judge
Jerry Lewis Angton, Florence In Propria Persona
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred.
¶1 Petitioner Jerry Angton seeks review of the trial court's summary dismissal of his petition for habeas corpus relief, which the court treated as a successive notice of post-conviction relief pursuant to Rule 32.3, Ariz. R. Crim. P. We grant review but, for the following reasons, we deny relief.
¶2 Pursuant to a plea agreement, Angton was convicted of two counts of sexual assault, found to be dangerous-nature offenses pursuant to former A.R.S. § 13-604, 1993 Ariz. Sess. Laws, ch. 255, § 7, and two counts of attempted sexual assault, all committed in November 1994. The trial court sentenced him to enhanced, consecutive, and partially aggravated twelve-year prison terms for the sexual assault convictions, to be followed by concurrent terms of lifetime probation for the attempted sexual assaults.
¶3 In his petition below, Angton argued (1) lifetime probation had not been a statutorily authorized disposition for his attempted sexual assault convictions under the rule announced in State v. Peek, 219 Ariz. 182, ¶¶ 12-20, 195 P.3d 641, 643-44 (2008); (2) the trial court should have sentenced him to concurrent, rather than consecutive prison terms for his sexual assault convictions; (3) the execution of his sentences as "flat-time" terms of imprisonment, without eligibility for early release, is inconsistent with the rule announced in State v. Tarango, 185 Ariz. 208, 212, 914 P.2d 1300, 1304 (1996); (4) because he was unaware of the law as stated in Tarango and Peek, his plea "was not knowing[ly] and intelligently made"; (5) his sentences violate the prohibition against double jeopardy; and (6) his trial counsel rendered ineffective assistance during the plea process.
¶4 The trial court identified these claims as cognizable under Rule 32.1(a) and, noting that this was Angton's "third request for post-conviction relief, " found the claims precluded. See Ariz. R. Crim. P. 32.2(a)(3) (preclusion of claims "waived at trial, on appeal, or in any previous collateral proceeding"); 32.4(a) (untimely notice "may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h)"). Relying on State v. Shrum, 220 Ariz. 115, 203 P.3d 1175 (2009), the court also rejected any argument that Peek constituted a significant change in the law that would support a non-precluded claim for relief under Rule 32.1(g). The court thus found Angton had "fail[ed] to state a claim for which relief can be granted in an untimely or successive Rule 32 proceeding, " denied his petition for writ of habeas corpus and dismissed the Rule 32 proceeding. The court subsequently denied Angton's motion for reconsideration of that ruling, and this petition for review followed.
¶5 On review, Angton contends the trial court abused its discretion in construing his petition for a writ of habeas corpus as a notice of post-conviction relief and then dismissing his claims without benefit of a Rule 32 petition prepared by counsel, in "violat[ion of his] state and federal constitutional rights to due process." Although his arguments are not entirely clear, he asserts the dismissal was improper because he had alleged claims "grounded in a newly announced rule of constitutional law which, if applied to [his] case[, ] probably would alter the sentences imposed" and because the court "denied some claims as being precluded, denied some claims as being cognizable, and denied some claims on the merits-all without presentation of a formal Petition." We review a trial court's summary denial of post-conviction relief for an abuse of discretion. State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006). We find none here.
¶6 As an initial matter, Angton is mistaken that the trial court "denied some claims as being precluded . . . and denied some claims on the merits." As addressed above, the court found all of Angton's claims precluded, as expressed in its conclusion that none of them could be raised in a successive Rule 32 proceeding. In asserting the court "denied some claims as being cognizable, " Angton appears to have misunderstood the court's statement that he had "raised six cognizable claims for post-conviction relief." All of Angton's claims fall within the recognized - or "cognizable"-ground for post-conviction relief in Rule 32.1(a), but they are precluded because Angton failed to raise them in a first, timely Rule 32 proceeding. See Ariz. R. Crim. P. 32.2(a)(3).
Resolution of Habeas Petition under Rule 32
¶7 Rule 32.3 provides that a defendant's application for a writ of habeas corpus "raising any claim attacking the validity of his or her conviction or sentence" shall be treated "as a petition for relief under this rule and the procedures of this rule shall govern." The trial court applied this rule correctly in resolving Angton's claims under Rule 32, although it treated Angton's habeas petition as a notice of post-conviction relief rather ...