Opinion
No. 2 CA-CR 2013-0325-PR
11-14-2013
THE STATE OF ARIZONA, Respondent, v. GREGORY MICHAEL GUSTIE, Petitioner.
Gregory Michael Gustie, Florence 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24
Petition for Review from the Superior Court in Maricopa County
No. CR2004131740001DT
The Honorable Arthur T. Anderson, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Gregory Michael Gustie, Florence
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. KELLY, Presiding Judge:
¶1 Pursuant to a plea agreement, petitioner Gregory Gustie was convicted of one count of molestation of a child and two counts of attempted molestation of a child, all dangerous crimes against children. In accordance with the stipulated terms in the plea agreement, the trial court sentenced Gustie to a slightly mitigated prison term of fifteen years, to be followed by two concurrent terms of lifetime probation. Gustie then filed a notice of and petition for post-conviction relief. The court summarily dismissed his notice as untimely and denied his subsequent motion for reconsideration. This petition for review, filed in propria persona, followed. We will not disturb the trial court's ruling unless it clearly abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We find no such abuse here.
Although the sentencing order does not expressly state the terms of lifetime probation are to be served concurrently, it appears the trial court so intended. In its sentencing order, the court not only stated that the terms of probation for both counts four and six shall begin "[u]pon absolute discharge from prison," but in its ruling dismissing the notice of post-conviction relief, the court also stated it had imposed "two concurrent terms of lifetime probation." However, in his notice of and petition for post-conviction relief, Gustie nonetheless refers to the probationary terms as "consecutive."
Although Gustie filed his petition a few days before the trial court dismissed his notice on June 14, 2012, it does not appear the court considered the petition when it ruled.
--------
¶2 Gustie was sentenced on April 23, 2007. On May 24, 2012, he filed an untimely, pro se notice of post-conviction relief, and on June 11, 2012, he filed a petition for post-conviction relief. See Ariz. R. Crim. P. 32.4(a) ("In a Rule 32 of-right proceeding, the notice [of post-conviction relief] must be filed within ninety days after the entry of judgment and sentence . . . . Any notice not timely filed may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h)."). In addition, Rule 32.2(b) requires summary dismissal of an untimely notice of post-conviction relief that fails to include "meritorious reasons . . . why the claim was not stated . . . in a timely manner."
¶3 In the form Gustie used for his notice of post-conviction relief, he checked the space in front of the statements, "Newly discovered material facts exist which probably would have changed the verdict or sentence," and "The defendant's failure to file a timely notice of post-conviction relief . . . was without fault on the defendant's part." In specifying the facts upon which he based his contentions, Gustie stated "[i]t has just come to the Petitioner's attention that . . . he had received an illegal sentence that is excessive and unconstitutional." Gustie also stated his failure to file a timely notice was the fault of counsel, who had failed to "recognize the significantly obvious [sentencing] issue." Gustie then cited, without explanation, Missouri v. Frye, __ U.S. __, 132 S. Ct. 1399 (2012), and Martinez v. Ryan, __ U.S. __, 132 S. Ct. 1309 (2012).
¶4 The record shows that at sentencing Gustie was given written notice, which he signed, advising him of his right to seek review of the convictions and sentences pursuant to Rule 32, also advising him of the time within which he was required to do so. In its ruling dismissing the notice of post-conviction relief, the court found the notice had been due in July 2007, Gustie's claim based on Rule 32.1(a) could not be raised in an untimely notice, and Gustie had failed to set forth any reasons why his claim fell within an exception permitting him to file an untimely Rule 32 proceeding. See Ariz. R. Crim. P. 32.4(a).
¶5 On review, Gustie asserts he relied on evidence discovered "at a later date" that the probationary terms imposed were illegal, and that trial counsel was ineffective "for failing to notice" this error. Gustie has not sustained his burden of showing the trial court abused its discretion in dismissing his untimely notice of post-conviction relief. The exception in Rule 32.1(f) does not permit a defendant to file an untimely claim because he only recently realized he had a potential claim to raise. See State v. Poblete, 227 Ariz. 537, ¶ 7, 260 P.3d 1102, 1104-05 (App. 2011) (rejecting claim Rule 32.1(f) permits untimely petition on basis defendant only recently learned plea had immigration consequences). Nor did Gustie's notice set forth any reasons substantiating his claim of newly discovered evidence pursuant to Rule 32.1(e).
¶6 Gustie also argues the trial court erroneously believed he had asserted a claim based on a significant change in the law rather than newly discovered evidence. See Ariz. R. Crim. P. 32.1(g), (e). Although it appears the court mistakenly believed Gustie's citation to Frye, __ U.S. __, 132 S. Ct. 1399, and Martinez, __ U.S. __, 132 S. Ct. 1309, was a claim based on a significant change in the law and addressed it as such, the court nonetheless concluded correctly that Gustie had failed to demonstrate why he should be permitted to file an untimely Rule 32 petition or why those cases would excuse his untimely filing. See State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (appellate court will sustain trial court if "correct for any reason").
¶7 And Gustie has not established that his asserted claim falls within any of the exceptions to the time limit of Rule 32.4(a). See Ariz. R. Crim. P. 32.1, 32.2(b). Implicit in the trial court's finding that Gustie had failed "to state a claim for which relief can be granted in an untimely or successive Rule 32 proceeding" is a finding that Gustie failed to provide "meritorious reasons . . . substantiating" his claim that his untimely filing was based on newly discovered evidence, or that it was without fault on his part, as required under Rule 32.2(b). See Ariz. R. Crim. P. 32.1(e), (f). Consequently, the court did not err when it dismissed Gustie's notice of post-conviction relief as untimely.
¶8 Accordingly, we grant the petition for review but deny relief.