STATE OF ARIZONA v. MELVIN A. SLINGER

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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 FILED BY CLERK OCT 31 2012 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. MELVIN A. SLINGER, Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2012-0255-PR DEPARTMENT B MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20031423 Honorable Christopher Browning, Judge REVIEW GRANTED; RELIEF DENIED The Ferragut Law Firm, P.C. By Ulises A. Ferragut Jr. K E L L Y, Judge. Phoenix Attorney for Petitioner ¶1 Pursuant to a plea agreement, petitioner Melvin Slinger was convicted in 2003 of two counts of sexual exploitation of a minor under the age of eighteen. The trial court imposed a substantially aggravated prison term of 12.5 years on one conviction, to be followed by lifetime probation on the other.1 In 2004, Slinger filed a petition for postconviction relief pursuant to Rule 32, Ariz. R. Crim. P. We denied relief on the petition for review of the court s denial of relief on that petition. State v. Slinger, No. 2 CA-CR 2005-0141-PR (decision order filed Feb. 16, 2006). More than five years later, Slinger filed his second petition for post-conviction relief, arguing Blakely v. Washington, 542 U.S. 296 (2004), was a significant change in the law that entitled him to relief. See Ariz. R. Crim. P. 32.1(g). The court deemed Slinger s argument precluded, and this petition for review followed. We will not disturb a trial court s ruling on a petition for postconviction 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 Slinger claims that, because the trial court aggravated his sentence based on factors not found to be true beyond a reasonable doubt by either a judge or a jury, and because he had not admitted such factors, his sentence violated Blakely s mandate and he was entitled to be resentenced. Finding that Slinger s present Blakely claim could have been raised in his first petition for post-conviction relief, the court deemed his claim precluded under Rule 32.2(a)(3) (claims precluded if waived at trial, on appeal, or in 1 The trial court found as aggravating factors the profound negative consequences and effect [of Slinger s actions on] the victim, and the tremendous betrayal of trust caused by Slinger s conduct. 2 previous collateral proceeding). Slinger asserts the court abused its discretion by incorrectly finding Blakely does not apply to him; concluding he had waived his claim by not raising it in his first post-conviction petition; and, deeming his claim precluded based on an exception to preclusion, to wit, a significant change in the law. ¶3 To the extent Slinger argues the trial court did not find Blakely applicable to him, he has misread the court s ruling. To the contrary, the court correctly found [Slinger s] present Blakely claim could have been properly raised in the previous petition. See State v. Cleere, 213 Ariz. 54, n.2, 138 P.3d 1181, 1184 n.2 (App. 2006) ( Blakely applies to cases pending on direct review when Blakely was decided. ). A conviction is final when the availability of appeal [is] exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied. State v. Towery, 204 Ariz. 386, ¶ 8, 64 P.3d 828, 832 (2003), quoting Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987). Although Slinger was convicted in 2003, his conviction was not final when Blakely was decided in 2004, and it thus applies to his case. However, the trial court stated that, because Slinger s notice of post- ¶4 conviction relief (and by inference, his petition), failed to provide either a specific, applicable2 exception to Rule 32.2(a), or, provide any meritorious reason to substantiate the failure to include [the Blakely] claim in his previous petition, Slinger had waived his 2 Because Slinger provided an arguably applicable exception to preclusion by couching his claim as a significant change in the law under Rule 32.1(g), we presume the trial court meant that the proffered exception to the rule of preclusion did not apply because Slinger had failed to either present his claim in his first Rule 32 petition or provide a meritorious reason for not having done so. 3 claim.3 As Rule 32.2(b) provides, [w]hen a claim under Rules 32.1(d), (e), (f), (g) and (h) is to be raised in a successive or untimely post-conviction relief proceeding, the notice . . . must set forth the substance of the specific exception and the reasons for not raising the claim in the previous petition or in a timely manner. Other than asserting he was unaware that he had a Blakely-type claim for post[-]conviction relief at the time of his prior post[-]conviction relief action, Slinger failed to provide any explanation why he did not raise this issue in his first petition. And, although Slinger was represented by counsel when he filed his first post-conviction petition in November 2004, he has not asserted that his attorney was ineffective for having failed to raise a Blakely claim on his behalf in that proceeding. ¶5 Although claims based on a significant change in the law are potentially exempt from preclusion under Rule 32.2(b), this exception does not extend to a defendant like Slinger who had the opportunity to raise the claim in a prior proceeding. Accordingly, because Slinger could have raised a claim based on Blakely in his first Rule 32 petition but did not, the trial court did not abuse its discretion by finding his claim precluded. 3 Based on the facts in this case, we find unpersuasive Slinger s argument that, in the absence of a knowing, voluntary and intelligent waiver, the trial court abused its discretion by finding his claim waived and therefore precluded under Rule 32.2(a)(3). Nor are we persuaded by his assertion that, because his first post-conviction proceeding was the functional equivalent of a direct appeal, see State v. Ward, 211 Ariz. 158, ¶ 9, 118 P.3d 1122, 1126 (App. 2005), the rule of preclusion somehow does not apply to a claim he could have, but did not raise in that proceeding. The waiver the court referred to here was not Slinger s waiver of the right to a jury trial, as Slinger seems to suggest, rather, it was his waiver of the right to raise this claim in his first post-conviction proceeding. 4 ¶6 We therefore grant review but deny relief. /s/ Virginia C. Kelly VIRGINIA C. KELLY, Judge CONCURRING: /s/ Garye L. VÃ¡squez GARYE L. VÃ SQUEZ, Presiding Judge /s/ Philip G. Espinosa PHILIP G. ESPINOSA, Judge 5

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