Petition for Review from the Superior Court in Pima County
No. CR20121217001 The Honorable Greg Sakall, Judge
Wayne Redzinak, Florence In Propria Persona
Espinosa authored the opinion of the Court, in which
Presiding Judge Vásquez and Judge Eppich concurred.
Joshua Redzinak seeks review of the trial court's order
summarily denying his petition for post-conviction relief
filed pursuant to Rule 32, Ariz. R. Crim. P. In that
petition, he had argued, amid other claims, that following
his convictions for two related crimes, A.R.S. § 13-116
barred the court from ordering that a term of probation for
one conviction begin after his release from prison for the
other conviction. We will not disturb the court's denial
of relief unless it abused its discretion. See State v.
Roseberry, 237 Ariz. 507, ¶ 7 (2015). Redzinak has
not shown such abuse here.
In 2012, Redzinak pled guilty to attempted sexual assault and
kidnapping. The trial court sentenced him to a 3.5-year
prison term for attempted sexual assault and, for kidnapping,
suspended the imposition of sentence and ordered a
consecutive, seven-year term of probation. In 2014, Redzinak
sought to modify his sentence, arguing the consecutive
probation term was improper. The court denied that motion,
and we dismissed his subsequent appeal pursuant to Rule
17.1(e), Ariz. R. Crim. P., as well as his attempt to seek
review of that ruling pursuant to Rule 32.9(c) because he
failed to submit the trial court's ruling on the motion.
Redzinak raised the same argument in a subsequent notice of
and petition for post-conviction relief, which the court
dismissed as untimely. This court denied relief on review.
State v. Redzinak, No. 2 CA-CR 2015-0063-PR (Ariz.
App. May 13, 2015) (mem. decision).
In 2015, Redzinak pled guilty to aggravated assault with a
deadly weapon and, as a result, the trial court found he had
violated the terms of his probation. The court continued
Redzinak on probation, imposing a seven-year term to commence
after he completed a 6.5-year prison term imposed for
Redzinak sought post-conviction relief from the disposition,
and appointed counsel filed a notice stating she had reviewed
the record but found no claims to raise under Rule 32.
Redzinak then filed a pro se petition repeating his argument
that the trial court was not permitted to order the new
probation term for the kidnapping to be consecutive to his
prison term for attempted sexual assault because the two
crimes constituted a single act. He contended he was entitled
to raise this claim as a "collateral attack" on the
original judgment "after revocation of probation, "
because the "reimposition [of probation] or resentence
begins the process anew." He also claimed counsel had
been ineffective in failing to raise this argument when the
court reinstated probation.
The trial court summarily denied relief, concluding that the
revocation of probation does not extend the time to seek
review of the "underlying sentence" and, thus,
"the time to challenge the original conviction and
sentencing under Rule 32 has long since passed." The
court also concluded that Redzinak had not been resentenced,
and the continuation of probation was merely "a
continuation of the earlier sentence." This petition for
review followed the court's denial of Redzinak's
motion for rehearing.
On review, Redzinak repeats his argument that he is permitted
to challenge the original imposition of a consecutive
probation term. He reasons that his guilty plea for
aggravated assault "automatically revokes
probation" pursuant to Rule 27.8(e), Ariz. R. Crim. P.,
thereby allowing him to again challenge the original order
imposing a consecutive term of probation which, he contends,
violates the protection against double jeopardy.
We first observe that, although Redzinak characterizes his
claim in terms of double jeopardy, that doctrine is not
implicated because attempted sexual assault and kidnapping
are distinct offenses with different elements. See State
v. Eagle, 196 Ariz. 188, ¶ 6 (2000) ("[W]hen
statutes describe different offenses, consecutive sentences
are permissible without implicating the prohibition against
double jeopardy"); see also A.R.S. §§
13-1304, 13-1406. Instead, Redzinak's argument is best
understood as a claim that the probation term imposed for
kidnapping violates the prohibition against double
punishment, see § 13-116, and, indeed, he
characterized it as such in his petition below. Pursuant to
§ 13-116, "[a]n act or omission which is made
punishable in different ways by different sections of the
laws may be punished under both, but in no event may
sentences be other than concurrent."
Section 13-116, however, by its plain language, does not
apply where, as here, only one sentence has been imposed.
See State v. Lambright, 243 Ariz. 244, ¶ 10
(App. 2017) ("[W]hen interpreting a statute, we must
give effect to the legislature's intent, which is best
reflected in the statute's plain language.").
"Section 13-116's requirement of concurrent
sentences does not prohibit a separate fine and prison
sentence for the same illegal act, but does not allow more
than one of each for that criminal act." State v.
Cook, 185 Ariz. 358, 365 (App. 1995). "Probation is
not a sentence." State v. Muldoon, 159 Ariz.
295, 298 (1988). As our supreme court explained in
Muldoon, "A sentence is a judicial order
requiring a defendant convicted in a criminal case to
presently suffer a specified sanction such as incarceration,
monetary fine, or both." 159 Ariz. at 298. In contrast,
"[p]robation is a judicial order allowing a criminal
defendant a period of time in which to perform certain
conditions and thereby avoid imposition of a sentence."
Id. Thus, because probation is not a sentence,
§ 13-116 does not prohibit a trial court from ordering a
term of probation to run consecutively to a sentence even if
the underlying convictions are based on the same conduct.
See Cook, 185 Ariz. at 365. Indeed, by law, a term
of probation cannot run concurrently to a ...