Author: LegalEase Solutions
QUESTIONS PRESENTED
- Whether Mr. Hughes would be prejudiced in any way by submitting a motion of no claim in the 2012 and 2014 cases?
- Whether Mr. Hughes would risk starting 2013 case all over again and potentially face the dropped charge if he wins his PCR in that case?
- Whether Mr. Hughes is entitled to credit for actual pre-sentence time served on his 2013 case, where the underlying conduct for violating his 2012 probation violation and 2013 (and 2014) conviction was the same conduct?
SHORT ANSWERS
- A defendant is precluded any issues he has “waived . . . in any collateral proceeding”. See R. Crim. P. Rule 32.2(a). Per Ariz. R.Crim. P. 32.4(a), petitioner should file for post-conviction relief within ninety day of the entry of judgement for any cases in which they may have such a claim. If notice is not timely filed, petitioner may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h). Id. Thus, if Hughes files a Motion of No Claim in the 2012 and 2014 cases, he will be prejudiced and waive his post-conviction rights in these cases. It is unclear if such a motion would prejudice a claim on his 2013 conviction.
- R. Crim. P. 32.1 (c) allows petitioners to attack a sentence without challenging the conviction in a post-conviction relief. Per Ariz. R. Crim. P. 32.3, a post-conviction relief displaces and incorporates all trial court post-trial remedies except post-trial motions. Thus, Hughes has the flexible right to attack his sentence without challenging the conviction or claim a relief of new trial. If a new trial is ordered, Hughes’s conviction may be reversed and charges reinstated, starting afresh the 2013 case. Additionally, there is a possibility of case dismissal and lower or new plea agreement. Moreover, if the trial starts afresh, Hughes may not get another plea agreement.
- R.S. § 13-712(B) does not require that presentence incarceration credit must be given on each consecutive sentence imposed. A.R.S. § 13–708(C) required the court to sentence Hughes to consecutive sentences for his 2012 and 2013 convictions as he had committed 2013 offence while on probation. Thus, he may not claim credit for his presentence incarceration as it was already credited to his consecutive sentences in 2012 and 2014 cases.
RESEARCH FINDINGS
- Whether Mr. Hughes would be prejudiced in any way by submitting a motion of no claim in the 2012 and 2014 cases?
“[A] defendant must file a notice of post-conviction relief ‘within ninety days after the entry of judgment and sentence.’ State v. Lopez, 234 Ariz. 513, 514-15, 323 P.3d 1164, 1165-66 (Ct. App. 2014), review denied (Jan. 6, 2015) (quoting Ariz. R.Crim. P. 32.4(a)). “Any notice not timely filed may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h).” Id. (quoting Id.) Generally, Post-conviction relief (PCR) not timely filed, can be filed based only on Ariz. R. Crim. P. Rules 32.1(d), (e), (f), (g) and (h).
Ariz. R. Crim. P. Rule 32.2 relates to preclusion and states:
- Preclusion. A defendant shall be precluded from relief under this rule based upon any ground:
1) Raisable on direct appeal under Rule 31 or on post-trial motion under Rule 24;
2) Finally adjudicated on the merits on appeal or in any previous collateral proceeding;
3) That has been waived at trial, on appeal, or in any previous collateral proceeding.
Ariz. R. Crim. P. Rule 32.2(a).
Rule 32.2(a) precludes relief on a ground that either was or could have been raised on direct appeal or in a previous PCR proceeding in order to “prevent endless or nearly endless reviews of the same case in the same trial court.” State v. Shrum, 220 Ariz. 115, 118, 203 P.3d 1175, 1178 (2009) (citing Stewart v. Smith (2002) 202 Ariz. 446, 450 [46 P.3d 1067, 1071]. “By requiring that all post-conviction claims be raised promptly, Rule 32.2(a) not only serves important principles of finality, but also allows any relief to be issued at a time when the interests of justice, from the perspectives of the defendant, the State, and the victim, can be best served.” Id. at 21. “[B]oth statute and rule permitted the court to infer waiver from a defendant’s failure to raise an issue [base on a] . . . ‘failure to raise any ground then available to him in a previous Rule 32 proceeding in which he was represented by counsel . . . .’” State v. Mata 185 Ariz. 319, 332, 332-33, 916 P.2d 1035, 1048 (1996) (quoting A.R.S. § 13-4232(C) (pre-1992); Rule 32.2(c) (pre-1992)). “The ‘purpose of the preclusion rule’ is to ‘require[ ] a defendant to raise all known claims for relief in a single petition to the trial court, thereby avoiding piecemeal litigation and fostering judicial efficiency.’” State v. Petty, 225 Ariz. 369, 373, 238 P.3d 637, 641 (2010) (quoting State v. Rosales, 205 Ariz. 86, 90, 66 P.3d 1263, 1267 (2003)). “The preclusion rules exist to prevent multiple post-conviction reviews, not to prevent review entirely.” Id.
From the above discussion, it appears that Mr. Hughes will be waiving his PCR rights in 2012 and 2014 cases and will be prejudiced on any possible future PCR for the 2012 and 2014 cases because he is affirmatively stating he has no claims in those cases.
- Whether Mr. Hughes would risk starting 2013 case all over again and potentially face the dropped charge if he wins his PCR in that case?
Ariz. R. Crim. P. 32.1 deals with the scope of remedy. The relevant portion reads:
Subject to the limitations of Rule 32.2, any person who has been convicted of, or sentenced for, a criminal offense may, without payment of any fee, institute a proceeding to secure appropriate relief.
Any person who pled guilty or no contest, admitted a probation violation, or whose probation was automatically violated based upon a plea of guilty or no contest shall have the right to file a post-conviction relief proceeding, and this proceeding shall be known as a Rule 32 of-right proceeding.
Grounds for relief are:
- . . .
- The sentence imposed exceeded the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law;
Ariz. R. Crim. P. 32.1 (c).
Thus, a post-conviction relief claim can be filed under Ariz. R. Crim. P. 32.1(c) for sentence “not in accordance with the sentence authorized by law.” Ariz. R. Crim. P. 32.1 (c). This provision allows petitioners to attack a sentence without challenging the conviction. It is the proper avenue for review of an allegedly illegal sentence imposed after admission of a probation violation. See State v. Baca (Ariz. Ct. App. 1996) 187 Ariz. 61, 62-63 [926 P.2d 528, 529-30].
Generally, “[a] Rule 32 petition for post-conviction relief is ‘analogous to a direct appeal for a pleading defendant.’ State v. Rosas-Hernandez, 202 Ariz. 212, 216, 42 P.3d 1177, 1181-82 (Ct. App. 2002) (quoting Montgomery v. Sheldon, 181 Ariz. 256, 260 n. 5, 889 P.2d 614, 618 n. 5 (1995), supplemented by 182 Ariz. 118, 893 P.2d 1281 (1995)). “Although procedurally different, a post-conviction relief proceeding is similar to a direct appeal in that both ensure that a defendant is afforded due process of law and both ultimately seek the same relief-a new trial.” Id at 217. (citing State v. Smith, 184 Ariz. 456, 458, 910 P.2d 1, 3 (1996)).
Rule 32 “is designed to accommodate the unusual situation where justice ran its course and yet went awry.” State v. Carriger, 143 Ariz. 142, 145, 692 P.2d 991, 994 (1984) (quoting State v. McFord, 132 Ariz. 132, 133, 644 P.2d 286, 287 (1984)). Rule 32 is a safeguard in addition to the many others that are part of our system, but it may not be abused. Id. at 146.
Ariz. R. Crim. P. 32.3 states the nature of post-conviction remedies as: “This proceeding is part of the original criminal action and not a separate action. It displaces and incorporates all trial court post-trial remedies except post-trial motions and habeas corpus.” Ariz. R. Crim. P. 32.3. Rule 32.8(a) provide for an evidentiary hearing[1] only “to determine issues of material fact.” State v. Gutierrez, 229 Ariz. 573, 579, 278 P.3d 1276, 1282 (2012)(quoting Ariz. R. Crim. P. 32.8. See also Rule 32.6 cmt). “‘If the court finds any colorable claim, it is required … to make a full factual determination before deciding it on its merits.’ Thus, when there are no material facts in dispute and the only issue is the legal consequence of undisputed material facts, the superior court need not hold an evidentiary hearing.” Id. (quoting State v. Borbon, 146 Ariz. 392, 399, 706 P.2d 718, 725 (1985)).
The foregoing indicates that Ariz. R. Crim. P. 32.1 (c) allows a petitioner to attack a sentence without challenging the conviction. However, if there are material issues to be determined in a post-conviction relief a petitioner can move for evidentiary hearing under Ariz. R. Crim. P. 32.8(a).
It follows that when a PCR is reviewed, Hughes will have all the right to challenge his sentence without challenging the conviction. . Thus, his conviction may not be reversed and charges reinstated, apparently eliminating the probability that the case may start afresh. However, if the case starts afresh there is a possibility of case dismissal and lower or new plea agreement and the probability that Hughes may not get another plea agreement.
- Whether Mr. Hughes is entitled to credit for actual pre-sentence time served on his 2013 case, where the underlying conduct for violating his 2012 probation violation and 2013 (and 2014) conviction was the same conduct?
In the California case, People v. Williams (1992) 10 Cal.App.4th 827, 829 [13 Cal.Rptr.2d 107-08], the Court of Appeals, relying In re Nickles (1991) 231 Cal.App.3d 415, 419, 282 Cal.Rptr. 411, held that trial court erred in denying the appellant’s presentence custody because it could not be attributed to “mixed conduct” solely because some of the counts were dismissed from a multiple-count information when it generated his presentence custody. Id “In such instances, presentence custody for offenses described in the dismissed counts remains wholly attributable to the legal proceedings related to the same conduct described in the remaining count on which he was convicted.” Id. at 829.
The Court of Appeals reasoned that “[t]he 12 dismissed counts, and the count to which appellant pled and on which he was convicted, were connected or related to each other, all describing the criminal conduct for which he was in presentence custody and here perpetrated against the same victim.” Id. at 834. All these counts together were taken into consideration to enforce a criminal remedy against appellant. Id. “This prosecutorial action was part of the “proceedings” against appellant, as that term is used in section 2900.5, subdivision (b) for purposes of considering the application of presentence custody credit.” Id. “In short, appellant’s presentence custody was attributable to ‘proceedings relating to the same conduct’ for which he was convicted, as but for his proceeding relating to his conduct in new case he would have been free of incarceration for probation violation. Id. at 834. Thus, it is not a mixed case but “proceedings relating to the same conduct.”
On the basis of the above analysis, Court of Appeals directed the Superior Court to credit the appellant with 139 days (correcting the clerical error of 140 days) of section 2900.5 credit for the period of incarceration from July 28 to December 13, 1991, plus sixty-eight days additional credit under section 4019, subdivision (f). Id. at 835.
In Arizona, “[a]ll time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense shall be credited against the term of imprisonment otherwise provided for by this chapter.” A.R.S. § 13-712(B). (This section came effective in January 2009. Prior to that A.R.S. § 13–709(B) is the relevant section). “A.R.S. § 13–709(B) does not require that presentence incarceration credit must be given on each consecutive sentence imposed.” State v. Cuen, 158 Ariz. 86, 88, 761 P.2d 160, 162 (Ct. App. 1988). In Cuen, the Court of Appeals held that it did not believe “. . . that the legislature intended that a criminal defendant would receive compounded credit time when consecutive sentences are imposed.” Id. Cuen Court reasoned the underlying constitutional rationale behind A.R.S. § 13–709 (now A.R.S. § 13-712) thus:
The underlying constitutional rationale behind A.R.S. § 13–709, giving credit for presentence incarceration, is based upon equal protection:
‘[A] defendant, as a matter of equal protection, must be credited with presentence jail time when such time, if added to the maximum sentence imposed, will exceed the maximum statutory sentence.’ Defendants financially unable to make bail should not serve longer in custody through presentence incarceration than similarly sentenced defendants able to post bail.
Id. (quoting State v. Hamilton, 153 Ariz. 244, 245, 735 P.2d 854, 855 (App.1987).
In State v. Sodders, 130 Ariz. 23, 633 P.2d 432 (Ct. App. 1981), the above rationale relied to determine whether presentence incarceration can be given in consecutive sentences. The Sodders Court held thus:
We concluded that there was no denial of equal protection when a sentencing court exercising its discretion determines that a consecutive sentence is to be served and does not give credit on the consecutive sentence where the prior sentence gives credit for presentence incarceration. We concluded that equal protection did not required a compounding of credit time for purposes of consecutive sentences. Appellant argues that the language of A.R.S. s 13-709(B) is clear in that it requires that if time is spent in custody pursuant to a specific offense, it must be credited against that offense. We do not believe, however, that the legislature intended that a criminal defendant would receive compounded credit time when consecutive sentences are imposed. Thus, we conclude that A.R.S. s 13-709(B) does not require that presentence incarceration credit must be given on each consecutive sentence imposed.
Id. at 29-30.
It is noted that the California law does not apply here as the instant case deals with consecutive sentence.
In the instant case, the Hughes 2012 probation was revoked and he was sentenced to one year imprisonment with 286 days pre-sentence credit. This sentence was to run concurrent with 2014 sentence where he was sentenced to 1.5 years and given 264 days pre-sentence credit. However, his 2013 sentence was to run consecutive to the above sentence and was sentenced to 1.5 years with no credit.
Further, A.R.S. § 13–708(C) required the court to sentence Defendant to consecutive sentences for his 2012 and 2013 convictions as he had committed 2013 offence while on probation. See State v. Piotrowski, 233 Ariz. 595, 599, 315 P.3d 1252, 1256 (Ct. App. 2014). The 2013 sentence is to run consecutively after the 2012 and 2014 sentences that are running concurrently. Based on the above discussed rationale, the Courts are not persuaded to grant pre-sentence credit when sentences run consecutively.
CONCLUSIONS
On the first issue, a defendant is precluded to raise a PCR proceeding on any ground if he has “waived . . . in any collateral proceeding”. See Ariz. R. Crim. P. Rule 32.2(a). Thus, if Hughes files a Motion of No Claim in 2012 and 2014 cases, he will be prejudiced and waive his post-conviction rights for these cases. However, it is unclear if such a motion would prejudice a claim on his 2013 conviction.
On the second issue, Ariz. R. Crim. P. 32.1 (c) allows Hughes to attack a sentence without challenging the conviction in a post-conviction relief.
Thirdly, A.R.S. § 13-712(B) does not require that presentence incarceration credit on consecutive sentences under A.R.S. § 13–708(C). The rule required the court to sentence Hughes to a consecutive sentence because he committed the 2013 offence while on probation. Thus, it seems he may not claim credit for his presentence incarceration.
[1] It is not referred in its usual sense. Court clarifies thus “In a sense, a hearing might be deemed “evidentiary” whenever the court receives or considers any evidence, including documents, recorded or transcribed testimony given in prior proceedings, affidavits, or other materials. We refer here, however, to evidentiary hearings in which witnesses testify in open court.” State v. Gutierrez (2012) 229 Ariz. 573, 579 n.2 [278 P.3d 1276, 1282].
