Opinion
No. 2 CA-CR 2018-0203-PR
10-02-2018
THE STATE OF ARIZONA, Respondent, v. JOSE MIGUEL TORRES, Petitioner.
Jose Miguel Torres, Winslow 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NOT FOR PUBLICATION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. CR20144214002
The Honorable Paul E. Tang, Judge
REVIEW GRANTED; RELIEF DENIED
Jose Miguel Torres, Winslow
In Propria Persona
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred.
EPPICH, Judge:
¶1 Petitioner Jose Torres seeks review of the trial court's order denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007). Torres has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Torres was convicted of two counts of armed robbery, two counts of aggravated robbery, and single counts of aggravated assault and kidnapping. The trial court sentenced him to enhanced, consecutive and concurrent terms of imprisonment totaling twenty-one years. This court affirmed his convictions and sentences on appeal. State v. Torres, No. 2 CA-CR 2015-0233 (Ariz. App. Mar. 9, 2016) (mem. decision).
¶3 Torres thereafter initiated a proceeding for post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record and could not "find any viable issues to present" in a Rule 32 proceeding. In a pro se supplemental petition, however, Torres claimed two of his sentences should have been concurrent; his due process, confrontation, and "compulsory process" rights had been violated; and he had not caused "harm" to a victim. The trial court summarily denied relief, determining the claims were precluded.
¶4 On review, Torres contends he was entitled to relief because the state filed its response late and it therefore should have been precluded pursuant to Rule 32.6(d). Torres filed his pro se petition in mid-November 2017, although the trial court had granted him an extension of time in which to file the petition that extended to January 6, 2018. Rule 32.6(a) allows the state forty-five days in which to file a response. That rule also allows the court to "grant the State a 30-day extension to file its response for good cause." Ariz. R. Crim. P. 32.6(a). After that the court may grant the state further extensions only upon "a showing of extraordinary circumstances." Id.
¶5 In this case, the state filed its response, along with a request for an extension of time, on January 5, 2018. Torres filed a motion to strike the response "for untimeliness," as based on the filing date of the petition, it had been due in mid-December. The trial court denied the motion, finding good cause for an extension and noting, correctly, that if it had the power to extend the time for filing, it could also hear a late motion for extension. See State v. Vincent, 147 Ariz. 6, 8 (App. 1985) ("[I]f a court in its discretion may extend the time for filing motions, it has the discretion to hear late motions."). Torres has not established that the court abused its discretion in granting an extension, particularly in view of the early filing of the petition, the short extension that was requested, and the lack of prejudice to Torres. See Ariz. R. Crim. P. 32.6(a) (allowing court discretion to grant state's motion for extension for good cause).
¶6 We also reject Torres's argument that Rule 32.6(d)(1) should be applied to the state's response. That subsection directs the trial court to "dismiss the petition" if it finds no claim that "presents a material issue of fact or law that would entitle the defendant to relief" that is not "precluded" or "untimely." Ariz. R. Crim. P. 32.6(d)(1). Nothing in that language suggests it could extend to the state's "response" made pursuant to Rule 32.6(a) or to arguments made by the state, which could not be subject to preclusion or the timeliness requirements of Rule 32. See State v. Godoy, 244 Ariz. 327, ¶ 7 (App. 2017) ("We interpret court rules 'using principles of statutory construction,' seeking to follow the intent of the drafters, looking first 'to the plain language of the . . . rule as the best indicator of that intent.' 'If the language is clear and unambiguous, we give effect to that language . . . .'" (alteration in original) (citation omitted) (quoting Fragoso v. Fell, 210 Ariz. 427, ¶ 7 (App. 2005))).
¶7 Torres also asserts the trial court was biased in accepting the state's response and denying him relief. But judicial rulings alone do not support a finding of bias or partiality without an additional showing of an extrajudicial source of bias or a deep-seated favoritism. State v. Ellison, 213 Ariz. 116, ¶ 40 (2006). No such bias appears on the record before us.
¶8 Finally, Torres summarily repeats his claim that two of his sentences should have been concurrent and urges this court to review for fundamental error. This court, however, rejected Torres's argument based on A.R.S. § 13-116 and double jeopardy principles on appeal. Torres, No. 2 CA-CR 2015-0233, ¶¶ 48-51. That claim, as well as the other claims of trial
error Torres raised, are precluded, as the trial court correctly determined. See Ariz. R. Crim. P. 32.2(a)(2), (3).
¶9 For these reasons, although we grant the petition for review, we deny relief.