State v. Cato ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JOHNNY DAVID CATO, Petitioner.
No. 1 CA-CR 16-0466 PRPC
FILED 8-17-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2004-009409-001
The Honorable J. Justin McGuire, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Johnny David Cato, Kingman
Petitioner
STATE v. CATO
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kenton D. Jones and Chief Judge Samuel A. Thumma
joined.
D O W N I E, Judge:
¶1 Johnny David Cato petitions for review from the dismissal of
his petition for post-conviction relief. For the following reasons, we grant
review but deny relief.
¶2 Cato pleaded guilty to two counts of attempted sexual
exploitation of a minor — dangerous crimes against children. He received
a prison sentence for one count and lifetime probation for the other count.
After his release from prison, a probation revocation petition was filed, and
Cato admitted violating his probation terms; the superior court revoked
probation and sentenced Cato to a presumptive ten-year term of
imprisonment.
¶3 Cato filed a timely petition for post-conviction relief, asserting
ineffective assistance of counsel. The superior court summarily dismissed
that petition, and this Court dismissed Cato’s ensuing petition for review
as untimely. State v. Cato, 1 CA–CR 16-0113 PRPC (Order dismissing review
3/2/16).
¶4 Cato filed a successive notice of post-conviction relief,
alleging “newly discovered material facts” under Arizona Rule of Criminal
Procedure (“Rule”) 32.1(e), again asserting his attorney should have
objected to the sentence of imprisonment, and arguing the superior court
failed to remand him to the Department of Corrections. The superior court
summarily dismissed the notice before a petition was filed.
¶5 In his petition for review, Cato contends the superior court
issued its decision without allowing him 60 days to file a petition in
accordance with Rule 32.4(c)(2), and he again alleges that the court failed to
issue a valid sentence of imprisonment.
¶6 In order to avoid preclusion, a defendant filing a successive
petition must set forth in his notice “the substance of the specific exception
2
STATE v. CATO
Decision of the Court
and the reasons for not raising the claim in the previous petition or in a
timely manner.” Rule 32.2(b). If a petitioner does not comply with this
requirement, “the notice shall be summarily dismissed.” Id. The superior
court correctly concluded that Cato’s notice was deficient, demonstrated no
“newly discovered material facts” within the ambit of the Rule 32.1(e)
exception, and was precluded under Rule 32.2(a)(3). See also State v. Harden,
228 Ariz. 131 (App. 2011) (affirming summary dismissal of deficient
successive notice claiming an ambiguity in the terms of probation).
¶7 Furthermore, the record also reflects no ambiguity in
sentencing Cato. The superior court complied with the statutory
requirement that a defendant sentenced to prison be ordered “committed
to the custody of the state department of corrections.” Ariz. Rev. Stat. § 13-
701(A).
CONCLUSION
¶8 For the foregoing reasons, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
3