Opinion
2 CA-CR 2021-0059-PR
09-13-2021
The State of Arizona, Respondent, v. Donald Ray Palmer, Petitioner.
Laura Conover, Pima County Attorney By Myles Austin Braccio, Deputy County Attorney, Tucson Counsel for Respondent Donald Ray Palmer, Buckeye In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20050892, The Honorable Deborah Bernini, Judge
Laura Conover, Pima County Attorney
By Myles Austin Braccio, Deputy County Attorney, Tucson
Counsel for Respondent
Donald Ray Palmer, Buckeye
In Propria Persona
Presiding Judge Espinosa authored the decision of the Court, in which Vice Chief Judge Staring and Judge Eckerstrom concurred.
MEMORANDUM DECISION
ESPINOSA, PRESIDING JUDGE
¶1 Donald Palmer seeks review of the trial court's ruling summarily dismissing his successive notice of post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., and denying his motion for reconsideration. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Palmer has not shown such abuse here.
¶2 Following a jury trial, Palmer was convicted of attempted first-degree murder, drive-by shooting, and aggravated assault. The trial court sentenced him to concurrent life terms described in the sentencing minute entry as being without the possibility of release for twenty-five years - however, the court stated at sentencing that Palmer "is sentenced to life in prison with the possibility of parole after 25 years." We affirmed Palmer's convictions and sentences on appeal. State v. Palmer, No. 2 CA-CR 2007-0118 (Ariz. App. Sept. 18, 2008) (mem. decision). Palmer has previously sought post-conviction relief at least three times, unsuccessfully. State v. Palmer, No. 2 CA-CR 2018-0218-PR (Ariz. App. Jan. 10, 2019) (mem. decision); 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).
¶3 In April 2021, Palmer filed a notice of post-conviction relief indicating he was raising claims pursuant to Rule 32.1(a), (c), (e), (f), and (g). Although he asserted that "the issue set forth was not known to [him] at the time of a previous notice," he did not identify any issues or otherwise explain the basis of any claim. The trial court summarily dismissed the notice, finding it was "not only untimely but not supported by any factual or legal grounds that would warrant relief."
¶4 Palmer sought reconsideration, arguing a recent federal district court decision constituted "newly-discovered material facts" entitling him to relief under Rule 32.1(e) for his "unconstitutional sentence." The thrust of his argument was that his sentence was improper because the trial court had indicated at sentencing he would become eligible for parole but parole did not exist at the time of his sentencing, and the Arizona Department of Corrections had informed him he was not eligible for parole. Thus, he reasoned, he "is serving a new sentence longer than what was originally imposed by the sentencing court." The trial court denied the motion, stating, "There are still no factual grounds or rules that would warrant relief." This petition for review followed.
¶5 On review, Palmer first argues the trial court erred by dismissing his notice, asserting he was not required to identify "any factual or legal grounds" for relief. He further asserts that, because he stated he was raising a claim of newly discovered evidence under Rule 32.1(e), any untimeliness was "excused." Nothing in Rule 32.4 requires a notice to contain a recitation of the factual or legal basis for a post-conviction claim. But Palmer asserted in his notice that he was raising a claim under Rule 32.1(a). Claims under that provision cannot be raised in a successive proceeding like this one-his constitutional claim is waived by his failure to raise it in a previous proceeding and it is therefore subject to summary dismissal. See Ariz. R. Crim. P. 32.2(a)(3).
Palmer also indicated he was claiming that "[t]he failure to timely file a notice of appeal or a notice of post-conviction relief" was not his fault. And Rule 32.4(b)(3)(D) requires a trial court to "excuse an untimely notice" raising a claim under Rule 32.1(a) "if the defendant adequately explains why the failure to timely file a notice was not the defendant's fault." But, in this successive proceeding, Rule 32.4(b)(3)(D) does not prevent his claim from being precluded as waived.
¶6 Palmer, however, also indicated he was raising claims under Rules 32.1(c), (e), (f), and (g), which may be raised "within a reasonable time after discovering the basis of the claim." Ariz. R. Crim. P. 32.4(b)(3)(B). A defendant raising such a claim must explain in the notice "the reasons for not raising the claim in a previous notice or petition, or for not raising the claim in a timely manner." Ariz. R. Crim. P. 32.2(b). A notice lacking "sufficient" reasons is subject to summary dismissal. Id.
¶7 In his notice, Palmer indicated he had raised the claim within a reasonable time. And he attempted to comply with Rule 32.2(b) by stating he had not previously raised the claim because he had not been aware of it. But, because Palmer did not identify the claim, its factual basis, or the circumstances of its discovery, it was impossible for the trial court to evaluate whether Palmer's reasons were sufficient as required by Rule 32.2(b). Thus, the court did not abuse its discretion in summarily dismissing Palmer's notice.
In light of Palmer's failure to comply with Rule 32.2(b), we also reject his argument that the trial court erred by implicitly rejecting Palmer's request for counsel. See Ariz. R. Crim. P. 32.5(a); State v. Harden, 228 Ariz. 131, ¶ 11 (App. 2011) (court not obligated to appoint counsel when post-conviction notice "facially non-meritorious").
¶8 Palmer next argues the trial court erred by denying his motion for reconsideration. First, nothing in Rule 32 permits a motion for reconsideration from the summary dismissal of a notice. See generally Ariz. R. Crim. P. 32.14 (permitting motion for rehearing from "trial court's final decision on a petition"). And, to the extent Palmer attempted to include in his motion for reconsideration the information he should have included in his notice, the court was not required to consider it. See Ramsey v. Yavapai Fam. Advoc. Ctr., 225 Ariz. 132, ¶ 18 (App. 2010). Nor was it required to consider any new claims Palmer raised in that motion. See id. The court did not abuse its discretion in denying Palmer's motion for reconsideration.
¶9 Even were we to overlook the numerous procedural defects in Palmer's attempt to bring his underlying claim, it does not warrant relief. As in his reconsideration motion below, he asserts he was sentenced to life with the possibility of parole-a sentence that did not exist at the time-resulting in a sentence he described below as "unconstitutional." Palmer is correct that Arizona largely abolished parole for offenses committed after the end of 1993. See A.R.S. § 41-1604.09(I)(1); Chaparro v. Shinn, 248 Ariz. 138, ¶ 10 (2020); see also A.R.S. § 13-718. As noted above, in orally announcing Palmer's sentence, the trial court stated he would not become eligible for "parole" until he served at least twenty-five years. But the sentencing minute entry stated Palmer would not be eligible for "release" until serving at least twenty-five years. When there is a discrepancy between the oral announcement of a sentence and the written minute entry, we may resolve that discrepancy by examining the record. See State v. Provenzino, 221 Ariz. 364, ¶ 25 (App. 2009). When a sentence is ambiguous, we will "examin[e] other factors, including the surrounding circumstances." Chaparro, 248 Ariz. 138, ¶ 9. We presume trial courts know and follow the law. See State v. Johnson, 212 Ariz. 425, ¶ 21 (2006).
Palmer's claim is arguably cognizable under Rule 32.1(c) or (d) and could not have been raised in an untimely proceeding before January 1, 2020. See Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019); Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017).
¶10 For Palmer's convictions, the only sentence the trial court could lawfully impose was life imprisonment without eligibility "for suspension of sentence, probation, pardon or release from confinement on any basis . . . until the person has served not less than twenty-five years or the sentence is commuted." 2003 Ariz. Sess. Laws, ch. 11, § 1. Although the trial court initially referred to parole, the later minute entry correctly refers to release. We cannot conclude from this discrepancy that the court intended to impose an illegal sentence of life with the possibility of parole after twenty-five years rather than the legal sentence identified in the minute entry .
Generally, the oral pronouncement of sentence will control over the minute entry, Stave v. Ovante, 231 Ariz. 180, ¶ 38 (2013), but we decline to apply that rule to conclude the court intended to impose an illegal sentence.
¶11 Although we grant review, relief is denied.