Opinion
2 CA-CR 2021-0081-PR
12-08-2021
The State of Arizona, Respondent, v. DeSean Alexander Bruce, Petitioner.
Harold L. Higgins PC, Tucson By Harold L. Higgins Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR059352002 The Honorable Javier Chon-Lopez, Judge
Harold L. Higgins PC, Tucson By Harold L. Higgins Counsel for Petitioner
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Espinosa and Vice Chief Judge Staring concurred.
MEMORANDUM DECISION
ECKERSTROM, JUDGE
¶1 DeSean Bruce seeks review of the trial court's ruling summarily dismissing his successive petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Bruce has not shown such abuse here.
¶2 After a jury trial, Bruce was convicted of first-degree murder, five counts of armed robbery, and two counts of attempted armed robbery. The trial court sentenced him to a natural life term for murder with concurrent prison terms for the other offenses. We affirmed his convictions and sentences on appeal. State v. Bruce, No. 2 CA-CR 2001-0148 (Ariz. App. July 23, 2002) (mem. decision). Bruce sought post-conviction relief, which the trial court denied, and we denied relief on review. State v. Bruce, No. 2 CA-CR 2006-0272-PR (Ariz. App. Feb. 28, 2007) (mem. decision).
¶3 In March 2020, Bruce filed a petition for post-conviction relief asserting a claim under Rule 32.1(h) that no reasonable jury could find him guilty beyond a reasonable doubt and a claim under Rule 32.1(c) that his sentences were "unduly harsh" and "illegal." The state moved to dismiss the petition, arguing Bruce had not complied with Rule 32.2(b) by providing "sufficient reasons" for "not raising the claim in a previous notice or petition" or "in a timely manner."
¶4 The trial court ordered Bruce to further address "why his successive petition for post-conviction relief is not subject to summary dismissal pursuant to Rule 32.2(b)," "provide legal authority as to why [Bruce] is not precluded from claiming ineffective assistance of counsel," and "identify any non-precluded facts" entitling him to an evidentiary hearing. After Bruce filed a memorandum addressing those issues and the state filed a response, the trial court summarily dismissed the proceeding. It determined that Bruce had not identified "sufficient reasons" for failing to raise his Rule 32.1(c) and (h) claims in his first petition, that his sentencing claim did not fall under Rule 32.1(c), and that any claims of ineffective assistance were precluded. This petition for review followed.
¶5 On review, Bruce restates his claims but, acknowledging the trial court did not reach the merits of those claims, argues the court erred in dismissing them based on Rule 32.2(b). That section of his petition for review, copied from his filing below, largely seeks to distinguish his case from this court's decision in State v. Leeman, 250 Ariz. 251 (App. 2020). But that case had been vacated by our supreme court well before Bruce filed this petition for review. State v. Leeman, No. CR-20-0436-PR (Ariz. July 30, 2021) (unreported disposition). Accordingly, we do not consider that portion of Bruce's petition.
¶6 Below, Bruce characterized his claims as falling under Rule 32.1(c) and (h). Such claims must be raised "within a reasonable time after" the defendant has "discover[ed] the basis of the claim." Ariz. R. Crim. P. 32.4(b)(3)(B). And, although such claims are not subject to preclusion on waiver grounds under Rule 32.2(a)(3), a defendant must nonetheless "explain the reasons for not raising the claim in a previous notice or petition, or for not raising the claim in a timely manner." Ariz. R. Crim. P. 32.2(b). If a defendant does not provide "sufficient reasons" why a claim had not been raised previously, a trial court may summarily dismiss the proceeding. Id.
¶7 Bruce asserts "the reason his successive petition was not filed earlier was that previous counsel had not explored the idea of relying on Rule 32.1(h) and had apparently not considered it." But, even disregarding Bruce's attempt to lay the blame on previous counsel, the delay in this case is remarkable-Bruce's current counsel acknowledges he has represented him since 2013 and was aware of what he believed to be a meritorious Rule 32.1(h) claim in 2017. And he was aware in early 2018 that the Pima County Attorney's Office Conviction Integrity Unit would not grant relief. Bruce does not explain why it took him another two years to file the successive petition-particularly given that Bruce's application to the panel included a detailed description of his Rule 32.1(h) claim.
Bruce has not attempted to explain his delay in seeking relief under Rule 32.1(c).
¶8 In any event, we cannot agree with Bruce that previous counsel's failure to raise a claim, standing alone, is a "sufficient reason[]" to Decision of the Court allow a delayed claim under Rule 32.2(b). Bruce's proposed interpretation would render meaningless the requirement that a defendant explain the reasons for a late filing-the requirement would always be met and no explanation would be necessary. "We will not interpret statutes or rules in a manner that renders portions of their text superfluous." Brenda D. v. Dep't of Child Safety, 243 Ariz. 437, ¶ 20 (2018).
Because Bruce does not squarely raise the argument, we do not address whether the ineffective assistance of previous post-conviction counsel could constitute a sufficient reason to allow a claim under Rule 32.1(b) through (h) in a successive petition. See Ariz. R. Crim. P. 32.2(b).
¶9 We grant review but deny relief.