STATE OF ARIZONA v. STEPHEN MICHAEL GALAVIZ

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FILED BY CLERK 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 JUN 29 2012 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. STEPHEN MICHAEL GALAVIZ, Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2012-0148-PR DEPARTMENT A MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF MARICOPA COUNTY Cause No. CR2004043069001SE Honorable Glenn M. Davis, Judge REVIEW GRANTED; RELIEF DENIED William G. Montgomery, Maricopa County Attorney By Linda Van Brakel Stephen Galaviz Phoenix Attorneys for Respondent Phoenix In Propria Persona E C K E R S T R O M, Presiding Judge. ¶1 Petitioner Stephen Galaviz seeks review of the trial court s summary dismissal of his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We grant review but deny relief. ¶2 In 2005, Galaviz was convicted of two counts of attempted sexual conduct with a minor and one count of sexual abuse after pleading no contest to those charges pursuant to a plea agreement. The trial court sentenced him to 2.5 years imprisonment for the sexual abuse conviction and lifetime probation for the attempted sexual conduct counts. Since then, he twice has been found in violation of his probation, and the court has reinstated his probation, most recently on October 2, 2009. ¶3 On June 21, 2011, Galaviz filed his first, pro se petition for post-conviction relief pursuant to Rule 32.1 In that petition, Galaviz maintained the trial court had erred in imposing consecutive sentences after consolidating all counts for trial, in violation of double jeopardy principles. Relying on State v. Vargas-Burgos, 162 Ariz. 325, 783 P.2d 264 (App. 1989), he argued the court lack[ed] jurisdiction to impose an illegal sentence and jurisdiction can be raised at any time. The trial court found Galaviz s Rule 32 proceeding untimely filed and concluded he had fail[ed] to state a claim for which relief can be granted in an untimely Rule 32 proceeding. See Ariz. R. Crim. P. 32.2(b) (untimely notice subject to summary dismissal for failure to state specific exception to preclusion, pursuant to Rule 32.1(d), (e), (f), (g), or (h), or meritorious reasons . . . indicating why the claim was not stated . . . in a timely manner ). ¶4 In the petition for review that followed, Galaviz argues the merits of his claim of sentencing error and asserts that [j]urisdictional errors in which a defendant is sentenced to an illegal term and which were never personally waived are not precluded 1 Because Galaviz did not first file a notice of post-conviction relief, as required by Rule 32.4(a), the trial court appears to have construed this filing as both a notice and petition for post-conviction relief. 2 [under] Rule 32.2. We review a trial court s summary denial of post-conviction relief for an abuse of discretion. See State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006). We find none here. ¶5 To the extent Galaviz suggests he may challenge the legality of his sentence at any time because such a claim is jurisdictional in nature, he is mistaken. In State v. Bryant, we explained, Subject matter jurisdiction is the power of a court to hear and determine a controversy. 219 Ariz. 514, ¶ 14, 200 P.3d 1011, 1014 (App. 2008), quoting Marks v. LaBerge, 146 Ariz. 12, 15, 703 P.2d 559, 562 (App. 1985). We thus conclude[d] that we used the word jurisdiction imprecisely in Vargas-Burgos and stated that when the trial court has jurisdiction over the subject matter and parties, its judgment, even if voidable and erroneous, [can] only be modified on appeal or by proper and timely post-judgment motion. Bryant, 219 Ariz. 514, ¶¶ 13, 15, 17, 200 P.3d at 1014, 1015. The trial court here had jurisdiction to sentence Galaviz. See id. ¶ 17. He has forfeited any challenge to the legality of that sentence by failing to raise it in a timely proceeding. See Ariz. R. Crim. P. 32.2(b), 32.4(a); cf. State v. Shrum, 220 Ariz. 115, ¶¶ 6-7, 23, 203 P.3d 1175, 1177, 1180 (2009) (claims of illegal sentence subject to preclusion under Rule 32.2(a)(3)).2 2 To the extent Galaviz refers to the availability of claims of ineffective assistance of trial and appellate counsel to support his argument that his claim is not precluded, no such ineffective assistance claims are before us. See Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review shall contain [t]he issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review ); State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980) (issues may not be raised for first time in petition for review). We note that, had such claims been raised, they also would be precluded by Rule 32.4(a). See State v. Petty, 225 Ariz. 369, ¶ 11, 238 P.3d 3 ¶6 We thus agree with the trial court s determination that Galaviz s claim is precluded by his failure to raise it in a timely Rule 32 proceeding. We therefore approve and adopt the court s ruling. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). ¶7 Accordingly, we grant review but deny relief. /s/ Peter J. Eckerstrom PETER J. ECKERSTROM, Presiding Judge CONCURRING: /s/ Joseph W. Howard JOSEPH W. HOWARD, Chief Judge /s/ J. William Brammer, Jr. J. WILLIAM BRAMMER, JR., Judge 637, 641 (App. 2010) (ineffective assistance of counsel claim does not fall within Rule 32.1(d), (e), (f), (g), or (h) but within Rule 32.1(a)); State v. Swoopes, 216 Ariz. 390, ¶ 28, 166 P.3d 945, 954 (App. 2007) ( An alleged violation of the general due process right of every defendant to a fair trial, without more, does not save that belated claim from preclusion. ). 4

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