State v. Harvey

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Petitioner, ) ) v. ) ) SHAWN PHILIP HARVEY, ) ) Respondent. ) ) ) __________________________________) DIVISION ONE FILED: 01-28-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 08-1113 PRPC DEPARTMENT A Yavapai County Superior Court No. V-1300-CR-9990010 DECISION ORDER The State petitions this court to review the superior court s grant Philip of Harvey. post-conviction Presiding Judge relief to Maurice respondent Portley, and Shawn Judges Lawrence F. Winthrop and Margaret H. Downie, have considered this petition for review and for the reasons stated, grant review and grant relief, and remand this matter to the trial court for further proceedings. Facts and Procedural History We discuss only the facts necessary to our disposition of this matter. with a minor, Harvey pled guilty to attempted sexual conduct a class 3 felony and dangerous crime against children, and sexual conduct with a minor, a class 6 felony and 1 CA-CR 08-1113 PRPC (Page 2) non-dangerous offense. The trial court accepted the plea and sentenced Harvey to an aggravated term of 1.5 years for sexual conduct with a minor, followed by lifetime intensive probation for attempted sexual conduct with a minor. In September of 2005, Harvey s probation officer filed a petition to revoke. Harvey admitted he violated probation. At the disposition hearing, the trial judge revoked Harvey s probation and imprisonment. imposed Although a mitigated advised of his term right of to six years seek post- conviction relief within ninety days, Harvey did not do so. Nearly three years later, and one year after State v. Gonzalez, 216 Ariz. 11, 162 P.3d 650 (App. 2007), Harvey filed a notice of post-conviction relief.1 He claimed he was entitled to relief pursuant to Gonzalez, which he asserted was a significant change in the law. He argued that according to Gonzalez, he was illegally sentenced pursuant to A.R.S. § 13-604.01(I) (2001),2 1 In Gonzalez, the court held that the dangerous crimes against children statute, Arizona Revised Statutes ( A.R.S. ) section 13-604.01, did not apply to attempted sexual conduct with a minor who is under the age of 12. Id. at 14-15, ¶¶ 1015, 162 P.3d at 654. Harvey s victim was eleven years of age at the time of the offenses. 2 This statute was renumbered to A.R.S. § 13-705 pursuant to 2008 Ariz. Sess. Laws, ch. 301, § 120 (2d Reg. Sess.). 1 CA-CR 08-1113 PRPC (Page 3) and asked to be resentenced pursuant to A.R.S. §§ 13-701 and 702 (2001). The State filed a response and argued the requested relief was precluded because Harvey had failed to raise it in a timely post-conviction relief proceeding. The State argued that Gonzalez was not a significant change in the law, and that no other exception to preclusion applied. After considering the matter, the trial court granted relief and set the matter for resentencing. The State then filed this petition for review, and the trial court vacated the resentencing hearing pending the outcome of this petition. Discussion On review, the State maintains that Harvey s claim is precluded because it was not timely presented. Harvey argues that his sentence is illegal, that an illegal sentence is void for lack of subject matter jurisdiction, and because subject matter jurisdiction can be raised at any time, his claim is not precluded. He also contends that Gonzalez is a significant change in the law that applies to his case, and thus the claim is excepted from Procedure 32.1(g). preclusion by Arizona Rule of Criminal Finally, he argues that his earlier post- 1 CA-CR 08-1113 PRPC (Page 4) conviction relief counsel was ineffective because he failed to raise the claim. Rule 32.2(a) states in part that a defendant shall be precluded waived from in relief any based previous upon any collateral ground that has proceeding. been Harvey acknowledges that his claim was not timely presented, and thus it is his burden to show an exception to preclusion. Ariz. R. Crim. P. 32.2(b). Harvey s argument that his claim is not precluded based on subject matter jurisdiction is simply incorrect. While it is true that a subject matter jurisdiction claim cannot be waived, State v. Flores, 218 Ariz. 407, 409-10, ¶ 6, 188 P.3d 706, 708-09 (App. 2008), the imposition of an illegal sentence is not a subject matter jurisdiction error. accepted Harvey s pleas of guilt and After the court entered judgments of convictions, the court had subject matter jurisdiction to impose sentence. See State v. Bryant, 219 Ariz. 514, 517-18, ¶¶ 14-17, 200 P.3d 1011, 1014-15 (App. 2008) (an illegal sentence is not a lack of subject matter jurisdiction error). Harvey s argument that Gonzalez change in the law has been rejected. court specifically held that the is a significant In State v. Shrum, the Gonzalez decision is not a 1 CA-CR 08-1113 PRPC (Page 5) significant change in the law. 220 Ariz. 115, 120, ¶ 23, 203 P.3d 1175, 1180 (2009). As to the ineffective assistance of counsel claim, Harvey had thirty days in which to file a post-conviction relief proceeding to challenge counsel s actions in his post-conviction relief of-right proceeding. State v. Pruett, 185 Ariz. 128, 131, 912 P.2d 1357, 1360 (App. 1995) (second notice of postconviction relief for a claim of ineffectiveness of previous PCR of-right thirty post-conviction days of order and counsel is timely mandate affirming if filed denial of within first petition for post-conviction relief in the case of a defendant who has pleaded guilty). timely present it. Harvey waived this claim by failing to State v. Spreitz, 202 Ariz. 1, 2, ¶ 4, 39 P.3d 525, 526 (2002). Although an illegal sentence is fundamental error, State v. Thues, 203 Ariz. 339, 340, ¶ 4, 54 P.3d 368, 369 (App. 2002), and subject to review in an appeal or PCR of-right, State v. Smith, 219 Ariz. 132, 135, ¶ 18, 194 P.3d 399, 402 (2008), the claim is waived unless presented in a timely appeal or PCR. Rule 32.1(c) specifically provides as a ground for relief a sentence that is not in accordance with the sentence 1 CA-CR 08-1113 PRPC (Page 6) authorized by law, and claims under this subsection are not exempt from preclusion. Rule 32.2(a), (b). The fact that an error is fundamental does not mean it cannot be waived. If the supreme be court had intended that fundamental error an exception to preclusion under Rule 32.2, the court presumably would have expressly said so in the rule itself. State v. Swoopes, 216 Ariz. 390, 403, ¶ 42, 166 P.3d 945, 958 (App. 2007). See State v. Smith, 184 Ariz. 456, 459, 910 P.2d 1, 4 (1996) (there is no review for fundamental error in a postconviction relief proceeding). While it appears Harvey s sentence is illegal pursuant to Gonzalez, our supreme court has made it clear that the failure to timely present such a claim constitutes a waiver, and any relief is precluded. When it decided State v. Peek, a case in which the defendant claimed his sentence was illegal, our supreme court specifically stated that it would decide the issue, explaining: Peek s petition for post-conviction relief was untimely; his claim should have been raised in his of right petition for postconviction relief. See Ariz. R. Crim. P. 32.1, 32.4. The State nonetheless joins Peek in asking that we address the legal issue raised. Because the State has waived preclusion and this case presents a recurring legal issue of statewide 1 CA-CR 08-1113 PRPC (Page 7) importance on which trial courts rendered conflicting opinions, we address the merits of the petition. have will 219 Ariz. 182, 183, ¶ 4, 195 P.3d 641, 642 (2008). See also Shrum, 220 Ariz. at 120, ¶¶ 23-24, 203 P.3d at 1180 (claim of illegal sentence not timely presented and not excepted by preclusion remanded for dismissal). Conclusion Harvey is precluded from relief because he failed to timely present court s order his of claim. November Therefore, we 24, which 2008, vacate the trial granted post- conviction relief and remand this matter to the superior court for dismissal of the post-conviction relief proceeding. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge

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