State v. Lockwood ( 2017 )


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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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    CARL RAY LOCKWOOD, Petitioner.
    No. 1 CA-CR 16-0417 PRPC
    FILED 8-24-2017
    Petition for Review from the Superior Court in Maricopa County
    No. CR 1999-007389
    The Honorable Pamela S. Gates, Judge
    REVIEW GRANTED; RELIEF DENIED
    COUNSEL
    Maricopa County Attorney’s Office, Phoenix
    By Diane Meloche
    Counsel for Respondent
    Carl Ray Lockwood, Florence
    Petitioner
    STATE v. LOCKWOOD
    Decision of the Court
    MEMORANDUM DECISION
    Judge Maria Elena Cruz delivered the decision of the Court, in which
    Acting Presiding Judge Peter B. Swann and Judge Jennifer B. Campbell
    joined.
    C R U Z, Judge:
    ¶1            Carl Ray Lockwood petitions this court for review from the
    dismissal of his petition for post-conviction relief filed pursuant to Arizona
    Rule of Criminal Procedure (“Rule”) 32. We have considered the petition
    for review and, for the reasons stated, grant review but deny relief.
    ¶2            Lockwood pled guilty to one count of sexual conduct with a
    minor and one count of attempted sexual conduct with a minor, both
    dangerous crimes against children, occurring on different dates. The
    superior court sentenced Lockwood to the presumptive term of 20 years’
    imprisonment for sexual conduct with a minor, and a subsequent term of
    lifetime probation for attempted sexual conduct with a minor.
    ¶3             Lockwood has filed multiple petitions for post-conviction
    relief, including one challenging the legality of his sentence, as having been
    illegally enhanced and aggravated, and one claiming that his term of
    lifetime probation was an illegal sentence. Neither petition was successful.
    ¶4             In February 2016, Lockwood resurrected his illegal sentence
    claims in a pleading captioned “Motion for Clarification of Sentence . . . Not
    to Be Construed as a Rule 32 Proceeding.” Lockwood alleged that his
    prison sentence was unlawfully enhanced under Arizona Revised Statutes
    (“A.R.S.”) section 13-604.01, his prison sentence and probation were
    required to run concurrently, being subject to double jeopardy analysis
    under A.R.S. § 13-116, and that his sentence was subject to review because
    the error was fundamental.1 Although Lockwood requested his motion not
    be construed as a petition under Rule 32, the court properly did so. Then,
    1      For this proposition, Lockwood cites Martin v. Martin, 
    182 Ariz. 11
    ,
    
    893 P.2d 11
    (App. 1994), a civil child support case, which is inapplicable and
    adds a quote found nowhere in the opinion.
    2
    STATE v. LOCKWOOD
    Decision of the Court
    pursuant to Rule 32.3, the superior court denied the motion and this
    petition for review followed.
    ¶5             Absent an abuse of discretion, this court will not disturb the
    superior court’s ruling on a petition for post-conviction relief. State v.
    Gutierrez, 
    229 Ariz. 573
    , 577, ¶ 19, 
    278 P.3d 1276
    , 1280 (2012). Lockwood has
    failed to show any abuse of discretion. Lockwood’s claims are untimely,
    and were, or could have been, raised in the earlier post-conviction relief
    proceedings and, as such, are precluded. Ariz. R. Crim. P. 32.2(a), 32.4(a).
    ¶6              Rule 32.1(c) specifically provides as a ground for relief a
    sentence that is “not in accordance with the sentence authorized by law,”
    and claims under this subsection are not exempt from preclusion. Rule
    32.2(a), (b); see also State v. Lopez, 
    234 Ariz. 513
    , 515, ¶ 8, 
    323 P.2d 1164
    , 1166
    (App. 2014) (providing that the time limits for filing a notice and petition
    for post-conviction relief are jurisdictional, and an untimely filed notice or
    petition shall be dismissed with prejudice under A.R.S. § 13-4234(G))
    (internal quotations omitted); State v. Shrum, 
    220 Ariz. 115
    , 
    203 P.3d 1175
    (2009) (post-conviction claims must be timely presented). The fact that an
    error is fundamental does not mean it cannot be precluded. If the supreme
    court “had intended that fundamental error be an exception to preclusion
    under Rule 32.2, the court presumably would have expressly said so in the
    rule itself.” State v. Swoopes, 
    216 Ariz. 390
    , 403, ¶ 42, 
    166 P.3d 945
    , 958 (App.
    2007).2
    2      Lockwood was sentenced appropriately in accordance with the law
    in effect at the time of his sentencing. The superior court sentenced
    Lockwood on the charge of sexual conduct with a minor in accordance with
    A.R.S. § 13-604.01(C) (1999), which required no priors for the term imposed.
    For the charge of attempted sexual conduct with a minor, A.R.S. § 13-902(E)
    (1999) authorized the superior court to order his term of lifetime probation
    consecutive to his prison term. Finally, since the charges occurred on
    different dates, double jeopardy claims were not implicated under A.R.S.
    § 13-116.
    3
    STATE v. LOCKWOOD
    Decision of the Court
    ¶7   We grant review and deny relief.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    4
    

Document Info

Docket Number: 1 CA-CR 16-0417-PRPC

Filed Date: 8/24/2017

Precedential Status: Non-Precedential

Modified Date: 4/18/2021