STATE OF ARIZONA v. ROBERT DALE BLANCHARD
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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 NOV 26 2012 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. ROBERT DALE BLANCHARD, Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2012-0357-PR DEPARTMENT B MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20043355 Honorable Richard E. Gordon, Judge REVIEW GRANTED; RELIEF DENIED Thomas C. Horne, Arizona Attorney General By Kimberly H. Ortiz The Law Office of Ronald Zack By Ronald Zack K E L L Y, Judge. Tucson Attorneys for Respondent Tucson Attorneys for Petitioner ¶1 Petitioner Robert Blanchard 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. In 2005, Blanchard was convicted of luring a minor for sexual exploitation, which had been charged in his indictment and plea agreement as a dangerous crime against children subject to sentence enhancement under former A.R.S. § 13-604.01. See 2001 Ariz. Sess. Laws, ch. 334, § 7. The court suspended his sentence and placed him on lifetime probation. In 2006, Blanchard admitted violating conditions of his probation, and the court revoked it, sentencing him to an enhanced, presumptive, ten-year prison term. Blanchard filed his first, untimely notice of post-conviction relief in April 2011, nearly five years after he was sentenced. See Ariz. R. Crim. P. 32.4(a) (Rule 32 notice must be filed within ninety days after the entry of judgment and sentence . . . . ). ¶2 In his petition for post-conviction relief filed by appointed counsel, Blanchard relied on State v. Hazlett, 205 Ariz. 523, ¶ 12, 73 P.3d 1258, 1263 (App. 2003), and State v. Regenold, 227 Ariz. 224, ¶¶ 3-10, 255 P.3d 1028, 1029-31 (App. 2011), to argue he had been sentenced illegally to an enhanced term of imprisonment. He also argued trial counsel had been ineffective in failing to object to the enhanced sentence imposed. ¶3 To avoid the preclusive effect of Rule 32.4(a), which limits claims in an untimely notice to those grounded in Rule 32.1(d), (e), (f), (g) or (h), Blanchard 2 maintained his illegal sentence claim ordinarily cognizable under Rule 32.1(c)1 also was cognizable under Rule 32.1(d), which provides a ground for relief when [t]he person is being held in custody after the sentence imposed has expired. According to Blanchard, this ground applied because, had he been sentenced pursuant to a general sentencing statute instead of former § 13-604.01, his sentence would have already expired, which means he is being illegally held in custody. Similarly, he relied on Stewart v. Smith, 202 Ariz. 446, ¶¶ 9-12, 46 P.3d 1067, 1070-71 (2002), to argue his Rule 32.1(a) claim of ineffective assistance of counsel2 was of sufficient constitutional magnitude to require personal waiver and, therefore, should not be precluded. The trial court summarily denied relief and dismissed Blanchard s petition, ¶4 finding his claims untimely and thus precluded pursuant to Ariz. R. Crim. P. 32.4(a) and 32.6(c). In this petition for review that followed, Blanchard restates the arguments he raised below and contends the court erred in finding his claims precluded. ¶5 We find no error and no abuse of discretion. See State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006) (summary denial of post-conviction relief reviewed for abuse of discretion). Rather, in its thorough ruling, the trial court clearly identified, addressed, and correctly resolved Blanchard s claims and arguments in a manner 1 Rule 32.1(c) permits relief where [t]he sentence imposed exceeded the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law. 2 Rule 32.1(a) provides a ground for relief if [t]he conviction or the sentence was in violation of the Constitution of the United States or of the State of Arizona. See also State v. Petty, 225 Ariz. 369, ¶ 11, 238 P.3d 637, 641 (App. 2010) (ineffective assistance of counsel cognizable under Rule 32.1(a) ). 3 sufficient to permit this or any other court to conduct a meaningful review. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). Accordingly, no purpose would be served by repeating the court s analysis here; instead, we adopt it. See id. ¶6 Because the trial court correctly found Blanchard s claims precluded by his untimely filing, we grant review, but deny relief. /s/ Virginia C. Kelly VIRGINIA C. KELLY, Judge CONCURRING: /s/ Garye L. Vásquez GARYE L. Và SQUEZ, Presiding Judge /s/ J. William Brammer, Jr. J. WILLIAM BRAMMER, JR., Judge* *A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Order filed August 15, 2012. 4
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