Opinion
No. 2 CA-CR 2014-0025-PR
05-12-2014
THE STATE OF ARIZONA, Respondent, v. RANDEE ROBERT VENSOR, Petitioner.
Randee R. Vensor, 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NOT FOR PUBLICATION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
Nos. CR1997094607 and CR1997095333
The Honorable William L. Brotherton Jr., Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Randee R. Vensor, 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 Petitioner Randee Vensor seeks review of the trial court's summary dismissal of his petition for habeas corpus relief, which the court treated as a successive notice of post-conviction relief 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, 166 P.3d 945, 948 (App. 2007). We find no such abuse here.
¶2 Pursuant to separate plea agreements, Vensor was convicted of sexual exploitation of a minor and attempted child molestation based on offenses committed in 1997, both dangerous crimes against children. The trial court sentenced Vensor to a presumptive, seventeen-year prison term for the exploitation conviction, to be followed by lifetime probation for the attempted child molestation.
¶3 On review, as in his petition for a writ of habeas corpus, Vensor argues he should have been released on January 27, 2012, after having served eighty-five percent of his seventeen-year sentence, which he contends is not a "flat time" sentence. Therefore, he asserts, he should be released immediately so he can begin his term of community supervision. In its September and November 2012 rulings denying Vensor's petition for habeas corpus relief and related motions, the trial court dismissed the Rule 32 proceeding and found this was a successive, untimely filing and Vensor had not shown he is being held in custody beyond the expiration of his sentence, as required by Rule 32.1(d), nor had he presented a claim under any other ground set forth in Rule 32.4(a) showing why his untimely, successive claim should not be subject to preclusion. See Ariz. R. Crim. P. 32.2(a)(3) (defendant precluded from claim "waived at trial, on appeal, or in any previous collateral proceeding"); 32.4(a) (untimely notice "may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h)"). The court also clarified that Vensor had been sentenced to "seventeen . . . calendar years, not seventeen . . . years with the possibility of receiving earned release credits."
Although the sentencing minute entry imposed a consecutive term of community supervision, at the sentencing hearing the trial court stated it was waiving community supervision because it was imposing a consecutive term of lifetime probation. "When a discrepancy between the trial court's oral pronouncement of a sentence and the written minute entry can be clearly resolved by looking at the record, the '[o]ral pronouncement in open court controls over the minute entry.'" State v. Ovante, 231 Ariz. 180, ¶ 38, 291 P.3d 974, 982 (2013), quoting State v. Whitney, 159 Ariz. 476, 487, 768 P.2d 638, 649 (1989) (alteration in Ovante). Therefore, any claim related to community supervision is moot.
Vensor filed his petition for habeas corpus relief in August 2012, more than twelve years after this court denied his petition for review from the trial court's dismissal of his first Rule 32 petition.
Although the trial court initially stated Vensor had been placed on lifetime probation for the sexual exploitation conviction, it corrected that error in its November ruling.
¶4 We note that the seventeen-year sentence about which Vensor complains is in fact a flat-time sentence. Because sexual exploitation of a minor is a dangerous crime against children in the first degree, Vensor "is not eligible for . . . release from confinement on any basis." See former A.R.S. § 13-604.01(C), (F), (K)(1)(f). Accordingly, to the extent the trial court found Vensor had "not demonstrated that he is being held in custody beyond the expiration of his sentence, as required by Rule 32.1(d), and ha[d] not stated any other claim upon which relief can be granted in a Rule 32 proceeding," we agree with its ruling.
Section 13-604.01, A.R.S., the sentencing statute in effect at the time Vensor committed the underlying offense, has been renumbered as A.R.S. § 13-705 and amended. See 1997 Ariz. Sess. Laws, ch. 179, § 1; 2008 Ariz. Sess. Laws, ch. 301, §§ 17, 29.
¶5 In addition, citing State v. Peek, 219 Ariz. 182, ¶¶ 12-20, 195 P.3d 641, 643-44 (2008), Vensor argues the imposition of lifetime probation was not a statutorily authorized disposition for the attempted child molestation offense which he committed between July 5 and August 18, 1997. See id. (defendant cannot be sentenced to lifetime probation for second-degree dangerous crime against children committed between January 1, 1994 and July 20, 1997). However, because this is Vensor's second post-conviction proceeding, his claim is precluded. See Ariz. R. Crim. P. 32.2(a)(3); Swoopes, 216 Ariz. 390, ¶ 42, 166 P.3d at 958 (fundamental error not excepted from preclusion); cf. Peek, 219 Ariz. 182, ¶ 4, 195 P.3d at 642 (addressing precluded claim of illegal sentence because state waived preclusion).
Nonetheless, relief from the lifetime term of probation may be available by way of a motion to modify probation. See Ariz. R. Crim. P. 27.3; State v. Dean, 226 Ariz. 47, ¶¶ 10, 21, 243 P.3d 1029, 1033, 1036 (App. 2010).
¶6 And, to the extent Vensor is suggesting that his discovery of the Peek decision qualifies his claim as one of newly discovered evidence under Rule 32.1(e), thereby excepting it from preclusion, it does not. See, e.g., State v. Saenz, 197 Ariz. 487, ¶ 7, 4 P.3d 1030, 1032 (App. 2000) (to qualify as newly discovered fact, evidence must have existed at time of trial). Similarly, to the extent Vensor intends to suggest Peek constitutes a significant change in the law that might entitle him to relief under Rule 32.1(g), it does not. See State v. Shrum, 220 Ariz. 115, ¶¶ 21-23, 203 P.3d 1175, 1180 (2009) (first appellate opinion interpreting statute is not significant change in law for purpose of Rule 32.1(g)).
The Adult Probation Department sent Vensor a letter in September 2010 notifying him his file had been "tagged for Peek action upon [his] release from prison."
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¶7 Therefore, we grant the petition for review but deny relief.