State v. Kelley ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
TRACY EUGENE KELLEY, Petitioner.
No. 1 CA-CR 13-0060 PRPC
FILED 03/18/2014
Petition for Review from the Superior Court in Maricopa County
CR2007-149438-001
CR2008-180037-001
CR2012-111423-004
The Honorable Daniel G. Martin, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane M. Meloche
Counsel for Respondent
Tracy Eugene Kelley, Tucson
Petitioner
STATE V. KELLEY
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Kenton D. Jones joined.
W I N T H R O P, Judge:
¶1 Petitioner, Tracy Eugene Kelley (“Kelley”), seeks review of
the superior court’s order denying his petition for post-conviction relief,
filed pursuant to Arizona Rule of Criminal Procedure 32.1. Absent an
abuse of discretion or error of law, this court will not disturb a superior
court’s ruling on a petition for post-conviction relief. See State v. Gutierrez,
229 Ariz. 573, 577, ¶ 19, 278 P.3d 1276, 1280 (2012). Finding no such error,
this court grants review but denies relief.
BACKGROUND
¶2 In Maricopa County Superior Court Cause No. CR2012-
111423-004, Kelley pled guilty to possession or use of methamphetamine
and misconduct involving weapons, with one historical prior felony
conviction. Pursuant to Arizona Rule of Criminal Procedure 27.8(e), the
determination of guilt in that case constituted an automatic violation of
Kelley’s probation in Maricopa County Superior Court Cause Nos.
CR2008-180037-001 and CR2007-149438-001, and these matters were set
for disposition hearings. Although the cases were not formally
consolidated, the trial court sentenced Kelley in all three cases on August
3, 2012.
¶3 On December 12, 2012, more than ninety days after the entry
of judgments and sentences, Kelley filed a notice of post-conviction relief
in which he listed all three cases. Kelley dated the notice November 3,
2012, and indicated the notice had been mailed November 5, 2012. The
notice did not set forth any claim or reasons why notice had not been
timely filed. After finding the notice was untimely filed, the trial court
summarily dismissed it, and Kelley timely petitioned this court for
review.
ANALYSIS
¶4 On review, Kelley attempts to rest blame for his untimely
filing on prison officials, who he asserts did not provide him with the
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STATE V. KELLEY
Decision of the Court
“forms for Rule 32” until November 2012. He states that, immediately
after he received the form, he mailed it to the superior court. However,
Kelley did not use a form for his notice of post-conviction relief. He filed a
handwritten pleading, and he offers no explanation why this handwritten
pleading could not have been timely filed. As noted by the trial court:
Defendant’s Notice is dated November 3, 2012, and
states a mailing date of November 5, 2012. As set forth
above, the Notice was not filed until December 12, 2012.
Rule 32.4(a) requires that the Notice be filed within the 90-
day period. Accordingly, based on the filing date, the Notice
is untimely by 39 days. Some latitude might be given for a
Notice that is at least mailed prior to the filing deadline,
assuming some proof was presented as to that mailing date.
Here, however, no circumstance has been shown that might
justify Defendant’s untimely filing.
¶5 Pursuant to Arizona Rules of Criminal Procedure 32.1 and
32.4(a), Kelley had ninety days from the entry of judgment and sentence to
file an “of-right” petition for post-conviction relief. Because Kelley failed
to file timely, and because he did not set forth any claim, or any reasons
why his notice had not been timely filed, the trial court did not abuse its
discretion when it summarily dismissed.
CONCLUSION
¶6 For these reasons, although we grant the petition for review,
we deny relief.
:gsh
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