Opinion
1 CA-CV 11-0012
12-20-2011
KEVIN A. OSBORN, Plaintiff/Appellant, v. ARIZONA DEPARTMENT OF CORRECTIONS; CHARLES L. RYAN, Defendants/Appellees.
Kevin A. Osborn In Propria Persona Phoenix Arizona Department of Corrections Charles L. Ryan By Daniel P. Schaack Attorneys for Defendants/Appellees Phoenix
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. LC 2010-000248-0001 DT
The Honorable Sam J. Myers, Judge
AFFIRMED
Kevin A. Osborn
In Propria Persona
Phoenix
Arizona Department of Corrections
Charles L. Ryan
By Daniel P. Schaack
Attorneys for Defendants/Appellees
Phoenix NORRIS, Judge
¶1 Plaintiff/Appellant Kevin A. Osborn timely appeals several rulings entered by the superior court in converting his successive petition for post-conviction relief against Defendants/Appellees the Arizona Department of Corrections and its director, Charles L. Ryan, (collectively, "ADOC") into a petition for special action and then denying it.
¶2 Generally, we review a superior court's denial of special action relief for an abuse of discretion. Cranmer v. State, 204 Ariz. 299, 301, ¶ 7, 63 P.3d 1036, 1038 (App. 2003). Nevertheless, we review legal issues de novo. Id.
¶3 Osborn first argues the superior court improperly converted his post-conviction proceeding into a special action because he is "being held in custody after the sentence imposed has expired," and thus, his claim is cognizable under Arizona Rule of Criminal Procedure ("Rule") 32.1(d). We disagree. As the comment to Rule 32.1(d) explains, the rule provides relief when a question of time computation results in a defendant "remaining in custody when he should be free." Because Osborn is currently serving the first of two consecutive 15-year sentences, even if we were to hold ADOC must apply his earned release credits to his first sentence, he would not be entitled to be released from imprisonment and his claim is thus not cognizable under Rule 32. State v. Davis, 148 Ariz. 62, 64, 712 P.2d 975, 977 (App. 1985). Although his claims were not cognizable under Rule 32, the superior court properly converted his petition into a petition for special action and accepted jurisdiction. Id. at 64-65, 712 P.2d at 977-78.
Osborn also argues the superior court should have addressed his restitution claim under Rule 32. In the superior court, however, he agreed his restitution claim "could properly be heard" as a special action.
We also note Osborn's argument that the superior court abused its discretion by failing to honor ADOC's notice of change of judge is not properly before us because he raised it for the first time in his motion to alter or amend the superior court's judgment. Medlin v. Medlin, 194 Ariz. 306, 308, ¶ 6, 981 P.2d 1087, 1089 (App. 1999) (issue waived when raised for first time after trial). Further, even if properly before us, the argument is without merit. Maricopa County Local Rule 9.5 states, "there shall be no automatic right to change of judge" in the Appeals Department, which exercises special action jurisdiction.
¶4 Osborn next argues the superior court abused its discretion in denying his claim ADOC should have applied approximately 3.7 years of earned release credit to his current sentence. We disagree. Osborn is currently serving the first of two consecutive sentences for crimes he committed on December 7, 1991. Effective January 8, 2003, ADOC, interpreting the version of A.R.S. § 41-1604.07 in effect at the time Osborn committed his offenses, adopted Department Order No. 1002.06, § 1.2.1, which stated:
Under Arizona Revised Statutes ("A.R.S.") section 41-1604.07(A)(3) (1991), Osborn is entitled to one day of earned release credit for every three days served within a certain classification.
Available online at http://www.azcorrections.gov/Polic ies/1000/1002.pdf (last visited December 9, 2011).
An inmate serving a sentence with a consecutive sentence to serve and whose date of offense is between August 13, 1986 and December 31, 1993 shall not be entitled to deduction of release credits. In the event that Parole to the consecutive sentence is not granted, the entire sentence shall be served prior to beginning the consecutive sentence.In Crumrine v. Stewart, 200 Ariz. 186, 188-89, ¶¶ 10-12, 24 P.3d 1281, 1283-84 (App. 2001), the court held ADOC was not required to apply earned release credits to the first of two consecutive sentences, and "although [the prisoner] is entitled to accrue earned release credits under subsection A [of A.R.S. § 41-1604.07], application of the credits is discretionary under subsection D." Id. at 189, ¶ 12, 24 P.3d at 1284. Osborn asks us to overrule Crumrine. We decline to do so; it was correctly decided. Thus, the superior court correctly rejected Osborn's claim ADOC wrongfully denied him earned release credits.
¶5 Osborn also argues that by applying statutory changes in the restitution scheme to the restitution the court ordered him to pay, ADOC violated the ex post facto clauses of the United States and Arizona constitutions. See U.S. Const. art. I, § 10; Ariz. Const. art. 2, § 25. Again, we disagree. When Osborn was sentenced in 1997, the superior court, consistent with Arizona law at the time, ordered ADOC to collect restitution from "30% of [his] earnings while incarcerated." See A.R.S. § 31-254(D) (1991). In 2007, the legislature amended the statutory restitution scheme to direct ADOC to collect between 20% and 50% of all money in a prisoner's spendable account, which includes monetary gifts, for restitution. 2007 Ariz. Sess. Laws, ch. 140, §§ 1, 2 (1st Reg. Sess.).
¶6 Here, changing Osborn's restitution payments in accordance with the revised statutes -- as ADOC did in 2009 -- did not increase Osborn's punishment; it merely increased the rate at which ADOC may collect restitution, and it therefore did not violate the ex post facto clauses. Quarles v. Kane, 482 F.3d 1154, 1155 (9th Cir. 2007); see also State v. Stocks, 227 Ariz. 390, 258 P.3d 208 (App. 2011) (ADOC's application of 2007 revisions to restitution ordered under previous version of A.R.S. § 31-254 did not violate prisoner's due process rights, infringe on court's order, or violate ex post facto clauses); State v. Glassel, 226 Ariz. 369, 248 P.3d 217 (App. 2011) (amending sentencing order to comply with 2007 revisions did not have ex post facto effect). Thus, the superior court correctly rejected Osborn's ex post facto argument.
Although Osborn raised other issues challenging ADOC's collection of restitution in the superior court, the only argument he has raised on appeal is whether the collection violates the prohibition against ex post facto laws.
¶7 For the foregoing reasons, we affirm the superior court's denial of special action relief.
Osborn has also requested that we award him the filing fees for his special action and for this appeal. First, we note the superior court granted him a deferral of his special action fees and, regardless of his indigent status, he is not entitled to a waiver of the filing fees in this case. See McCormick v. Wawrzaszek, 133 Ariz. 386, 387, 651 P.2d 1211, 1212 (App. 1982). Second, Osborn is not the successful party and is therefore not entitled to his costs on appeal under Arizona Rule of Civil Appellate Procedure 21.
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PATRICIA K. NORRIS, Judge
CONCURRING:
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MICHAEL J. BROWN, Presiding Judge
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PHILIP HALL, Judge