Opinion
No. 1 CA-CR 13-0497 PRPC
06-11-2015
STATE OF ARIZONA, Respondent, v. BRYAN MATTHEW GILLIAM, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Karen Kemper Counsel for Respondent Bryan Matthew Gilliam, Tucson 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
No. CR2007-175000-002
The Honorable Joseph C. Kreamer, Judge
REVIEW GRANTED; RELIEF GRANTED IN PART, DENIED IN PART; REMANDED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Karen Kemper
Counsel for Respondent
Bryan Matthew Gilliam, Tucson
Petitioner
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Jon W. Thompson joined.
JONES, Judge:
¶1 Bryan Gilliam petitions for review of the summary dismissal of two notices of post-conviction relief filed pursuant to Arizona Rule of Criminal Procedure 32. We have considered his petition and conclude the trial court abused its discretion in dismissing one of the two notices. We therefore grant review and relief and we remand for further proceedings in regard to the third petition for post-conviction relief. We grant review and deny relief in regard to the fourth petition for post-conviction relief.
PROCEDURAL HISTORY
¶2 Gilliam was indicted on one count of second degree murder, two counts of endangerment, one count of aggravated assault, and one count of misconduct involving weapons. Prior to trial, Gilliam pled guilty to the charge of misconduct involving weapons. Sentencing was deferred until completion of trial on the other four counts. Following a jury trial, Gilliam was found guilty on the remaining four counts. On August 24, 2010, the trial court sentenced Gilliam to consecutive and concurrent presumptive prison terms totaling forty-three years. This Court affirmed Gilliam's convictions and sentences for the four counts of which he was found guilty at trial. State v. Gilliam, 1 CA-CR 10-0721 (Ariz. App. July 24, 2012) (mem. decision).
¶3 During the pendency of his direct appeal, Gilliam timely filed his first notice of post-conviction relief on November 11, 2010. Counsel appointed to represent Gilliam in this post-conviction of-right proceeding subsequently filed a request to withdraw the Rule 32 notice without prejudice pending the outcome of Gilliam's direct appeal on the four other counts. The trial court granted the request with leave to refile the Rule 32 notice within thirty days after issuance of the mandate on the appeal.
¶4 This Court issued a decision on Gilliam's direct appeal on July 24, 2012. On September 13, 2012, Gilliam refiled his first notice of post-conviction relief and requested reappointment of counsel. On September 25, 2012, the trial court reappointed counsel and set a timeline for the post-conviction proceedings. On December 3, 2012, a petition for post-conviction relief with respect to Gilliam's guilty plea to the charge of misconduct involving weapons was filed by counsel alleging claims of illegal sentence, lack of a factual basis, and ineffective assistance of counsel. On March 29, 2013, the trial court summarily dismissed the petition ruling Gilliam failed to state a colorable claim for relief.
¶5 On April 22, 2013, Gilliam filed a second notice of post-conviction relief in which he indicated his intention to raise a claim of ineffective assistance of Rule 32 counsel in his first, of-right post-conviction proceeding. The trial court ultimately dismissed this second notice, and Gilliam did not file a petition for review with this Court.
¶6 On April 23, 2013, the Arizona Supreme Court denied Gilliam's petition for review of his direct appeal. On May 16, 2013, Gilliam timely filed a third notice of post-conviction relief indicating he intended to raise claims of ineffective assistance of both trial and appellate counsel under Rule 32.1(a) with respect to the four counts that were the subject of his direct appeal. On May 22, 2013, Gilliam filed a fourth notice of post-conviction relief, again directed at the circumstances surrounding his guilty plea for misconduct involving weapons. In this notice, Gilliam indicated he intended to raise claims of ineffective assistance of counsel, newly discovered evidence, actual innocence, prosecutorial misconduct, and constitutional violations pursuant to Rule 32.1(a), (e), and (h). On May 29, 2013, this Court issued its mandate on Gilliam's direct appeal.
¶7 On June 17, 2013, the trial court considered the third and fourth notices and summarily dismissed both. This petition for review followed.
DISCUSSION
¶8 We review the summary dismissal of a post-conviction relief proceeding for abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006) (citing State v. Krum, 183 Ariz. 288, 293 (1995)). "An abuse of discretion occurs when 'the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice.'" State v. Arellano, 213 Ariz. 474, 478, ¶ 14 (2006) (quoting State v. Chapple, 135 Ariz. 281, 297 n.18 (1983)). We will affirm the trial court's ruling if it is legally
correct for any reason. State v. Perez, 141 Ariz. 459, 464 (1984) (citing State v. Dugan, 113 Ariz. 354, 355 (1976), and State v. Claxton, 122 Ariz. 246, 259 (App. 1979)); see also State v. Lopez, 234 Ariz. 513, 515, ¶ 10 (App. 2014) (affirming denial of petition for post-conviction relief on grounds other than those identified by the trial court).
I. The Third Notice
¶9 In addressing the third notice, the trial court found the notice was timely but successive. Citing Rule 32.4(a), the court summarily dismissed the third notice because Gilliam "cannot raise [a Rule 32.1(a)] claim in an untimely or successive Rule 32 proceeding because an untimely or successive notice may only raise claims pursuant to Rule 32.1(d), (e), (f), (g), or (h)."
¶10 However, Rule 32.4(a) only restricts the types of claims that can be raised in a notice that is untimely — not one that is successive. See Ariz. R. Crim. P. 32.4(a) ("Any notice not timely filed may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h)."). Rule 32.4(a) is not implicated where a successive notice is timely. State v. Petty, 225 Ariz. 369, 373 n.3, ¶ 10 (App. 2010). Here, the trial court correctly observed Gilliam's third notice was timely. See Ariz. R. Crim. P. 32.4(a) (permitting filing of notice of post-conviction relief "within thirty days after the issuance of the order and mandate in the direct appeal"). But, the court erred in determining a Rule 32.1(a) claim brought in a successive notice is barred by Rule 32.4(a).
¶11 Rule 32.2(a) would have precluded Gilliam's Rule 32.1(a) claim in his third notice if the claim had or could have been raised in a previous post-conviction proceeding, but the claim was not nor could have been raised in a previous proceeding. Although the court previously addressed Gilliam's claim of ineffective assistance of counsel related to the weapons charge to which he pleaded guilty, it had not yet addressed a claim of ineffective assistance of counsel with respect to the four counts that were the subject of his direct appeal. Gilliam's opportunity to raise Rule 32.1(a) claims of ineffective assistance of trial and appellate counsel with respect to the four criminal counts on which he was convicted had not yet arisen. Indeed, at the time Gilliam filed his first and second notices, he was seeking supreme court review of this Court's decision to affirm his convictions and sentences. Therefore, the Rule 32.1(a) claim in the third notice is not precluded.
¶12 Because the third notice was timely and did not contain precluded claims, the trial court abused its discretion in summarily dismissing this notice.
II. The Fourth Notice
¶13 We find no error by the trial court in summarily dismissing the fourth notice regarding Gilliam's misconduct involving weapons conviction. Although the fourth notice was timely, Gilliam's asserted Rule 32.1(a) claims of ineffective assistance of counsel, prosecutorial misconduct, and constitutional violation are precluded under Rule 32.2(a), and his Rule 32.1(e) and (h) claims are without merit.
¶14 Rule 32.2(a) precludes claims that "either w[ere] or could have been raised on direct appeal or in a previous PCR proceeding." State v. Shrum, 220 Ariz. 115, 118, ¶ 12 (2009) (citing State v. Carriger, 143 Ariz. 142, 145 (1984)). Gilliam already had two opportunities to raise these Rule 32.1(a) claims in his first and second notices. Granting Gilliam another opportunity to claim he was unlawfully induced to plead guilty would create unnecessary delay and contravene the express language of Rule 32.2(a). For this reason, the trial court did not abuse its discretion in finding Gilliam's Rule 32.1(a) claims of ineffective assistance of counsel, prosecutorial misconduct, and constitutional violation were precluded.
¶15 Moreover, we agree with the trial court that Gilliam's Rule 32.1(e) claim of newly discovered facts and Rule 32.1(h) claim that existing facts clearly established his innocence are without merit. Although not automatically precluded under Rule 32.2, because these claims are part of a successive post-conviction relief proceeding related to the weapons charge, Gilliam was required to set forth the "exception and meritorious reason[] . . . substantiating the claim and indicating why the claim was not stated in the previous petition." Ariz. R. Crim. P. 32.2(b). He did not do so, and the trial court did not abuse its discretion in summarily dismissing these claims. See Ariz. R. Crim. P. 32.2(b) ("If the specific exception and meritorious reasons do not appear substantiating the claim and indicating why the claim was not stated in the previous petition or in a timely manner, the notice shall be summarily dismissed.") (emphasis added); State v. Harden, 228 Ariz. 131, 132, ¶ 4 (App. 2011).
CONCLUSION
¶16 For the foregoing reasons, we grant review and relief with regard to the third notice and remand to the trial court for further proceedings consistent with this decision. We grant review and deny relief with regard to the fourth notice.