Opinion
No. 2 CA-CR 2018-0218-PR
01-10-2019
THE STATE OF ARIZONA, Respondent, v. DONALD RAY PALMER, Petitioner.
Donald R. Palmer, 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NOT FOR PUBLICATION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. CR20050892
The Honorable Deborah Bernini, Judge
REVIEW GRANTED; RELIEF DENIED
Donald R. Palmer, Buckeye
In Propria Persona
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. VÁSQUEZ, Judge:
¶1 Donald Palmer seeks review of the trial court's orders dismissing his untimely notice of post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., as well as his motions seeking to amend his notice and asking the court to recuse itself. We will not disturb those orders unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015); see also State v. Ramsey, 211 Ariz. 529, ¶ 37 (App. 2005). Palmer has not shown such abuse here.
¶2 After a jury trial, Palmer was convicted of attempted first-degree murder, drive-by shooting, and aggravated assault. He was sentenced to concurrent life terms without the possibility of release for twenty-five years. We affirmed his convictions and sentences on appeal. State v. Palmer, No. 2 CA-CR 2007-0118 (Ariz. App. Sept. 18, 2008) (mem. decision). Before this proceeding, Palmer has sought and been denied post-conviction relief on at least two occasions, and this court denied relief on review. State v. Palmer, No. 2 CA-CR 2017-0189-PR (Ariz. App. Oct. 25, 2017) (mem. decision); State v. Palmer, No. 2 CA-CR 2010-0100-PR (Ariz. App. June 25, 2010) (mem. decision).
At sentencing, the trial court stated Palmer "is sentenced to life in prison with the possibility of parole after 25 years." The sentencing minute entry, however, states Palmer would not be eligible "for release for 25 years."
¶3 In April 2018, Palmer filed a notice of post-conviction relief asserting the trial court had been "unaware the sentence impose[d] was not in accordance with the sentence authorized by law" and requesting that counsel be appointed. Shortly thereafter, he filed a petition for post-conviction relief arguing his sentences are illegal because the trial court had imposed a sentence of life with the possibility of parole despite the abolition of parole. He further contended he could not be resentenced as a repetitive dangerous offender because the state had not proven his previous convictions beyond a reasonable doubt, the court had improperly relied on a sealed document at sentencing, and his trial counsel had been ineffective.
¶4 The following day, the trial court denied Palmer's request for counsel and, apparently unaware of Palmer's recently filed petition, ordered him to file a petition for post-conviction relief by July 26. After the initially assigned trial judge recused, however, the newly assigned judge summarily dismissed Palmer's notice, also without addressing his petition.
¶5 Palmer then filed a "Motion to Recuse," asserting the trial court was required to recuse itself from his case because it had presided over a civil trial based on the same events leading to his convictions. He additionally filed an "Amended" notice of post-conviction relief indicating his claim of illegal sentences was based on newly discovered evidence and a significant change in the law because he previously had been unaware of the claim. The court denied the recusal request and Palmer's amended notice, observing that no rule permitted an amended notice after the court had dismissed the initial notice. This petition for review followed.
Palmer apparently learned of the new judge's assignment when he received the ruling summarily dismissing his notice. --------
¶6 On review, Palmer first argues the trial court erred by denying his motion to recuse. He has cited no relevant authority, however, suggesting a trial court is required to recuse itself in these circumstances. Nor has he identified any evidence the court might have heard in the civil trial that was not introduced in the criminal proceeding. Thus, he has waived this claim on review, and we do not address it further. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (insufficient argument waives claim on review).
¶7 Palmer next asserts the trial court erred by summarily dismissing his notice, repeating his claim that his sentences were improper because parole had been abolished at the time of his sentences. But a claim of an illegal sentence falls under Rule 32.1(c) and, as such, cannot be raised in an untimely proceeding like this one. See Ariz. R. Crim. P. 32.4(a)(2)(A). And, even had Palmer initially sought to raise this claim as one of newly discovered evidence pursuant to Rule 32.1(e) or a significant change in the law pursuant to Rule 32.1(g), he would not be entitled to relief. Although claims under those provisions can be raised in an untimely proceeding, see Ariz. R. Crim. P. 32.4(a)(2)(A), neither provision encompasses Palmer's claim—he has identified neither new evidence nor a change in the law, only his recent discovery of a claim that he acknowledges was apparent at the time of sentencing, see generally Ariz. R. Crim. P. 32.1(e) (permitting relief based on "newly discovered material facts . . . [that] probably would . . . change[] the verdict or sentence"), 32.1(g) (permitting relief based on "a significant change in the law that" if applicable "would probably overturn the defendant's conviction or sentence"); State v. Serna, 167 Ariz. 373, 374 (1991) (describing elements of claim of newly discovered evidence).
¶8 Palmer last argues the trial court erred by dismissing his notice because the previous trial judge had set a due date for his petition. By doing so, he argues, the court "had already decided that [his] . . . notice was adequate enough to move forward." But Palmer's notice was facially inadequate because, as we have explained, the only claim he identified could not be raised in an untimely proceeding. Thus, the court was required to dismiss it. See Ariz. R. Crim. P. 32.6(d)(1). In any event, any error plainly was harmless. Palmer has not identified below or on review any claim raisable in an untimely proceeding. See Ariz. R. Crim. P. 32.4(a)(2)(A).
¶9 We grant review but deny relief.