STATE v. SOUCH

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NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA, Respondent, v. GERALD CHARLES SOUCH, Petitioner. No. 1 CA-CR 15-0008 PRPC FILED 4-6-2017 Petition for Review from the Superior Court in Maricopa County No. CR 0000-159749 The Honorable Robert E. Miles, Judge Retired REVIEW GRANTED; RELIEF DENIED COUNSEL Maricopa County Attorney’s Office, Phoenix By Diane Meloche Counsel for Respondent Gerald Charles Souch, Kingman Petitioner MEMORANDUM DECISION Presiding Judge Peter B. Swann delivered the decision of the court, in which Judge Kent E. Cattani and Judge Donn Kessler joined. STATE v. SOUCH Decision of the Court S W A N N, Judge: ¶1 In 1987, Gerald Charles Souch pled guilty to five felony offenses pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). The superior court sentenced Souch to an aggregate term of fifty-eight years of imprisonment, and this court affirmed his convictions and sentences on direct appeal. Souch now petitions this court for review from the superior court’s dismissal of pleadings that the court treated as a successive petition for post-conviction relief. We grant review but deny relief. ¶2 Souch contends that the court erred when it (1) considered “catch-all” aggravating circumstances for sentencing purposes; (2) imposed consecutive rather than concurrent sentences; (3) imposed “flat-time” sentences; and (4) increased each of his sentences by twenty-five percent. Souch contends that his claim regarding the court’s consideration of “catchall” circumstances is timely because State v. Schmidt, 220 Ariz. 563 (2009); State v. Perrin, 222 Ariz. 375 (App. 2009), and State v. Zinsmeyer, 222 Ariz. 612 (App. 2009), constitute a significant change in the law. Souch further contends that all of his claims are otherwise timely because Ariz. R. Evid. 103(e) allows him to raise claims of “fundamental error” at any time in a post-conviction relief proceeding. Souch finally contends that the superior court erred when it considered his pleadings as a successive petition for post-conviction relief rather than as a petition for writ of habeas corpus. ¶3 We deny relief. As an initial matter, Ariz. R. Crim. P. 32.3 provides that if a defendant applies for a writ of habeas corpus in a superior court that has jurisdiction over the defendant and the defendant raises any claim that attacks the validity of the conviction or sentence, the court “shall” treat the matter as a petition for post-conviction relief under Rule 32. Next, Souch could have raised all of the sentencing issues in a prior postconviction relief proceeding. Though Souch contends that Schmidt, Perrin, and Zinsmeyer constitute a significant change in the law, Souch has filed many post-conviction relief petitions since those opinions were published. Souch’s claims therefore are precluded under Ariz. R. Crim. P. 32.2(a) and (b). Further, Ariz. R. Evid. 103(c) offers no basis upon which a defendant can initiate post-conviction relief proceedings of any sort, timely or otherwise. 2 STATE v. SOUCH Decision of the Court ¶4 For the foregoing reasons, we grant review but deny relief. AMY M. WOOD • Clerk of the Court FILED: AA 3

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