State v. Donoho

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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, ) ) Respondent, ) ) v. ) ) DARRELL JAMES DONOHO, JR., ) ) Petitioner. ) ) ) ) __________________________________) DIVISION ONE FILED: 03/30/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0036 PRPC DEPARTMENT A Maricopa County Superior Court No. CR 1995-092762 DECISION ORDER Darrell James Donoho, Jr., petitions this court for review from the dismissal of his petition for post-conviction relief. Presiding Judge Maurice Portley, and Judges Lawrence F. Winthrop and Margaret H. Downie, have considered this petition for review and, for the reasons stated, grant review but deny relief. Donoho pled guilty molestation of a child in 1996. different times in 1995. to two counts of attempted The offenses were committed at He was sentenced to a presumptive prison term of ten years for one count and lifetime probation for the other. He did not challenge the imposition of lifetime 1 CA-CR 09-0036-PR (Page 2) probation in his first petition for post-conviction relief. Donoho successfully completed his prison sentence, but violated a term of his lifetime probation in 2007. His probation was revoked to in May 2007, and he was sentenced a presumptive prison term of ten years. One year after his probation was revoked, and twelve years after lifetime probation was originally imposed, Donoho filed his second petition for post-conviction relief, and argued that the revocation of his probation and prison sentence should be vacated because the original imposition of lifetime probation in 1996 was illegal. He argued that Arizona Revised Statutes ("A.R.S.") section 13-902 (periods of probation), as it existed in 1995, did not provide for the probation for preparatory offenses. imposition of lifetime He argued the maximum term of probation available in 1995 for attempted molestation of a child, a class 3 felony, was five years. 902(A)(2) (Supp. 1993). See A.R.S. § 13- The trial court dismissed the petition and Donoho now seeks review. Donoho correctly maintained that, in 1995, lifetime probation child. was not Effective authorized for January 1994, 1, attempted § molestation 13-902 was of amended a to provide for lifetime probation only for offenses identified in 1 CA-CR 09-0036-PR (Page 3) chapter 14 of the criminal code. See 1993 Ariz. Sess. Laws, ch. 225, § 8 (1st Reg. Sess.); see also State v. Peek, 219 Ariz. 182, 183-84, ¶¶ 8-10, 195 P.3d 641, 642-43 (2008). At that time, chapter 14 included the offense of molestation of a child, but not the preparatory offense of attempted molestation of a child. See A.R.S. §§ 13-1410 (Supp. 1993) and -1001 (1989). Therefore, in 1995, the version of § 13-902 did not provide for the imposition of lifetime probation for the crimes Donoho pled guilty to. See Peek, 219 Ariz. at 184, ¶ 12, 195 P.3d at 643; State v. Van Adams, 194 Ariz. 408, 420, ¶ 41, 984 P.2d 16, 28 (1999) (stating that the preparatory offense of "attempt" as defined in § 13-1001 is a separate and distinct offense from the substantive lifetime offense). probation The for ability an attempted to place sexual a defendant offense was on not reintroduced into the sentencing code until October 1997, when § 13-902 was amended to permit lifetime probation for "an attempt to commit any offense that is included in chapter 14 . . . ." See 1997 Ariz. Sess. Laws, ch. 179, § 2 (1st Reg. Sess.); see also Peek, 219 Ariz. at 184, ¶ 10, 195 P.3d at 643. Therefore, there was no authority under Arizona law to place a defendant on lifetime probation for attempted molestation of a child 1 CA-CR 09-0036-PR (Page 4) committed in 1995. See id. at 184-85, ¶¶ 11-19, 195 P.3d at 643-44. Although review. While Donoho the correctly trial court argues did not the find law, the we deny issue was precluded, any court on review may find an issue raised in a petition for post-conviction relief is precluded as untimely. Ariz. R. Crim. P. 32.2(c). Although this court has, in the past, granted relief on the same issue, that relief was granted before the Arizona Supreme Court opinions in Peek and/or State v. Shrum, 220 Ariz. 115, 203 P.3d 1175 (2009). In Peek, our supreme court held that, if a defendant was improperly placed on lifetime probation pursuant to § 13902, and did not raise the issue in the first, or the ofright, petition for precluded as untimely. post-conviction relief, the issue is Peek, 219 Ariz. at 183, ¶ 4, 195 P.3d at 642; see also Ariz. R. Crim. P. 32.2(a) (stating that any claim that could have been raised in an earlier post-conviction relief proceeding is precluded). Our supreme court only addressed the issue because both the State and Peek requested that the court address it, and the State expressly waived preclusion. Peek, 219 Ariz. at 183, ¶ 4, 195 P.3d at 642. See 1 CA-CR 09-0036-PR (Page 5) Further, Peek was not a significant change in the law which would permit an untimely filing pursuant to Arizona Rule of Criminal Procedure 32.2(b). Peek was merely the first case to point out what the applicable version of § 13-902 provided. "An appellate decision is not a significant change in the law simply because it is the first to interpret a statute. an appellate opinion a change in the reverses a trial court judgment[.]" law simply Nor is because it Shrum, 220 Ariz. at 120, ¶ 21, 203 P.3d at 1180. In Shrum, decided after Peek, our supreme court made it clear that the rule of preclusion includes untimely claims regarding the legality of a sentence. There, the supreme court held that an issue regarding the legality of a sentence was precluded as untimely even though there was no lawful authority for the imposed sentence. 1177-80. enhanced because Id. at 117-20, ¶¶ 3-24, 203 P.3d at In Shrum, the defendant had been sentenced within an range the pursuant (Supp. 1998) dangerous crime Id. at 116, ¶ 2, 203 P.3d at 1176. Even offense against children. had to A.R.S. been § 13-604.01 designated a though the parties later acknowledged that the offense was not a dangerous crime against children, thereby rendering § 13-604.01 wholly inapplicable, the supreme court nevertheless held the 1 CA-CR 09-0036-PR (Page 6) issue was precluded as untimely. Id. at 120, ¶ 23, 203 P.3d at 1180. not Further, the court did merely deny relief, but ordered the post-conviction relief petition be dismissed. Id. at ¶ 24. Donoho should have challenged the imposition of lifetime probation in a timely of-right petition for postconviction relief in 1996. Because he failed to do so, any challenge to the imposition of lifetime probation is precluded. Therefore, he cannot challenge the subsequent revocation of that probation for an admitted violation of his probation. For the reasons stated above, we grant review but deny relief. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge

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