State v. Mammoth ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JIMMY MAMOTH, Petitioner.
No. 1 CA-CR 15-0658 PRPC
FILED 6-1-2017
Petition for Review from the Superior Court in Mohave County
No. CR201200671
The Honorable Rick A. Williams, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Mohave County Attorney’s Office, Kingman
By Matthew J. Smith
Counsel for Respondent
Jimmy Mamoth, Eloy
Petitioner
STATE v. MAMOTH
Decision of the Court
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Paul J. McMurdie joined.
T H O M P S O N, Judge:
¶1 Petitioner Jimmy Mamoth petitions this court for review from
the dismissal of his untimely and successive petition for post-conviction
relief. In 2012, Mamoth pled guilty to promoting prison contraband, a class
5 felony. The superior court sentenced Mamoth to 1.5 years of
incarceration to be served consecutively to the Pinal County case Mamoth
was already serving a sentence for. In 2015, Mamoth filed a successive
petition for post-conviction relief. The superior court dismissed Mamoth’s
petition and Mamoth now seeks review. Unless we find that the superior
court abused its discretion, we will not disturb its ruling. State v. Swoopes,
216 Ariz. 390, 393, ¶ 4, 166 P.3d 945, 948 (App. 2007). We grant review and
having found no abuse of discretion, we deny relief.
¶2 On November 11, 2014, Mamoth filed a pleading entitled
“Nunc Pro Tunc with Memorandum of Law in Support.” This filing
claimed that Mamoth was entitled to presentence incarceration credit. The
superior court denied Mamoth’s Nunc Pro Tunc with Memorandum of Law
in Support noting that Mamoth’s pleading was an attempt to circumvent
Arizona Rule of Criminal Procedure 32 (Rule 32) procedures and
timeframes. The court found that Mamoth was not entitled to “double
credit” under State v. McClure, 189 Ariz. 55, 938 P.2d 104 (App. 1997); State
v. Cuen, 158 Ariz. 86, 761 P.2d 160 (App. 1988); and State v. Chavez, 172 Ariz.
102, 834 P.2d 825 (App. 1992).
¶3 Mamoth’s third and instant petition for post-conviction relief
again claimed that Mamoth was entitled to credit for time served pursuant
to State v. Seay, 232 Ariz. 146, 302 P.3d 671 (App. 2013). The superior court
dismissed Mamoth’s petition for post-conviction relief finding that
Mamoth failed to provide case law to support granting an additional 140
days’ credit. On review, Mamoth claims only that he is entitled to “credit
for time served for all time between his transfer from the corrections
2
STATE v. MAMOTH
Decision of the Court
department to the county jail and his sentencing” which he asserts amounts
to 140 days’ credit.1
¶4 First, when filing an untimely notice of post-conviction relief,
the petitioner must provide “meritorious reasons for not raising the claim
in . . . a timely manner.” Ariz. R. Crim. P. 32.2(b). If a petitioner fails to do
so, the superior court is required to summarily dismiss the notice. Id.; see
State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991) (denying
relief upon review of the trial court’s denial of post-conviction relief where
petitioner failed to meet the “heavy burden in showing the court why the
non-compliance [with the timelines set forth in Rule 32.9] should be
excused”) (citing State v. Pope, 130 Ariz. 253, 256, 635 P.2d 846, 849 (1981));
see also State v. Peek, 219 Ariz. 182, 183, ¶ 4, 195 P.3d 641, 642 (2008) (claim
of illegal sentence must be timely presented). Mamoth has failed to comply
with the requirements of Rule 32.2(b) because he has not set forth any
specific exception or indicated why his claim was not previously raised in
a timely petition for post-conviction relief. We are obliged to uphold the
trial court if the result is legally correct for any reason. State v. Perez, 141
Ariz. 459, 464, 687 P.2d 1214, 1219 (1984); State v. Cantu, 116 Ariz. 356, 358,
569 P.2d 298, 300 (App. 1977). We find that the superior court did not abuse
its discretion when dismissing Mamoth’s petition for post-conviction relief.
¶5 Even if Mamoth’s petition had been filed in a timely manner
and was not successive, the record indicates that Mamoth’s argument is
unsupported by fact or law. Mamoth was sentenced to a consecutive term
of imprisonment. As the superior court noted, this makes Mamoth’s case
factually distinguishable from State v. Seay, where the defendant was
ultimately sentenced to a concurrent term. Id. at 147, 302 P.3d at 672.
Mamoth is seeking credit for time already credited against the Pinal County
superior court case which he was previously sentenced to the Department
of Corrections in. To award Mamoth 140 days’ credit would allow Mamoth
to benefit from a “double credit windfall” we deemed impermissible in
State v. Cuen, 158 Ariz. at 87, 761 P.2d at 161 (App.1988) (court may not give
double credit for presentence time served when consecutive sentences are
imposed.). See also State v. McClure, 189 Ariz. at 57, 938 P.2d at 106.
1Mamoth does not contend that he did not receive any credit for time spent
in the Mohave County jail. In fact, Mamoth, by reference, concedes that he
did receive credit against his Pinal County case for time spent in the
Mohave County jail pending resolution of the Mohave County case.
3
STATE v. MAMOTH
Decision of the Court
¶6 For the reasons stated, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
4