Opinion
No. 2 CA-CR 2019-0114-PR
08-26-2019
THE STATE OF ARIZONA, Respondent, v. DARNELL JOSEPH LEWIS, Petitioner.
Darnell Lewis, Buckeye 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Pima County
No. CR20054535
The Honorable Jeffrey T. Bergin, Judge
REVIEW GRANTED; RELIEF DENIED
Darnell Lewis, Buckeye
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Vásquez and Judge Eppich concurred. STARING, Presiding Judge:
¶1 Darnell Lewis seeks review of the trial court's order summarily dismissing his untimely notice of and petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Lewis has not shown such abuse here.
¶2 After a jury trial, Lewis was convicted of first-degree murder and sentenced to life without the possibility of release for twenty-five years. We affirmed his conviction and sentence on appeal. State v. Lewis, No. 2 CA-CR 2007-0018 (Ariz. App. Mar. 17, 2008) (mem. decision). His first Rule 32 proceeding was dismissed after he failed to file a pro se petition. State v. Lewis, No. 2 CA-CR 2010-0129-PR (Ariz. App. July 23, 2010) (mem. decision). He has since sought and been denied post-conviction relief on at least three occasions. See State v. Lewis, No. 2 CA-CR 2012-0485-PR (Ariz. App. Apr. 15, 2013) (mem. decision).
The trial court stated Lewis would be eligible for "parole" after serving twenty-five years. But the Arizona legislature "abolished parole for all crimes committed after January 1, 1994," well before Lewis's offenses. State v. Valencia, 241 Ariz. 206, ¶ 23 (2016) (Bolick, J., concurring); see also 1993 Ariz. Sess. Laws, ch. 255, § 86. Thus, by stating Lewis could be eligible for parole, the court arguably imposed an illegal sentence from which the state did not appeal. Cf. State v. Dawson, 164 Ariz. 278, 283-84 (1990) (appellate court lacks authority to correct illegally lenient sentence absent appeal by state). But Lewis has not asserted he is entitled to a parole hearing and been denied one, even assuming such a claim would be cognizable under Rule 32.1. See generally Ariz. R. Crim. P. 32.1(a)-(h). --------
¶3 In March 2019, Lewis filed a notice of and petition for post-conviction relief arguing his post-conviction counsel had been ineffective by failing to raise a sentencing claim and a claim of ineffective assistance of trial counsel. The trial court summarily dismissed the proceeding, and this petition for review followed.
¶4 On review, Lewis repeats the arguments he made below and asserts the claims are not subject to preclusion because fundamental error occurred. But the claims Lewis identifies cannot be raised in an untimely proceeding like this one, see Ariz. R. Crim. P. 32.4(a)(2)(A), (D); see also Ariz. R. Crim. P. 32.1(a), (c), even if any error might constitute fundamental error, see State v. Shrum, 220 Ariz. 115, ¶¶ 6-7 (2009) (illegal sentence claim precluded); State v. Swoopes, 216 Ariz. 390, ¶ 42 (App. 2007) (fundamental error not excepted from preclusion under Rule 32.2); see also State v. Lopez, 234 Ariz. 513, ¶¶ 7-8 (App. 2014) (claims requiring knowing waiver nonetheless cannot be raised in untimely proceeding). The trial court therefore did not err in summarily dismissing Lewis's most recent request for post-conviction relief.
¶5 We grant review but deny relief.