Opinion
No. 2 CA-CR 2018-0074-PR
09-14-2018
THE STATE OF ARIZONA, Respondent, v. AMY KAY GUSTAFSON, Petitioner.
Amy Gustafson, Goodyear In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Pima County
No. CR20113700001
The Honorable Richard D. Nichols, Judge
REVIEW GRANTED; RELIEF DENIED
Amy Gustafson, Goodyear
In Propria Persona
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.
ECKERSTROM, Chief Judge:
¶1 Amy Gustafson seeks review of the trial court's order denying her motion for rehearing of the court's order denying her 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). Gustafson has not shown such abuse here.
¶2 After a jury trial, Gustafson was convicted of aggravated robbery, kidnapping, assault, second-degree burglary, aggravated assault on an incapacitated victim, and theft of a credit card. The trial court sentenced her to concurrent prison terms, the longest of which is 10.5 years. We affirmed her convictions and sentences on appeal. State v. Gustafson, 233 Ariz. 236 (App. 2013).
¶3 Gustafson sought post-conviction relief, which the trial court denied based on its conclusion her claims were precluded because she had not timely filed her petition for post-conviction relief. On review, we granted relief, concluding her notice of and petition for post-conviction relief had, in fact, been timely filed and the court had erred in finding her claims precluded. State v. Gustafson, No. 2 CA-CR 2016-0024, ¶¶ 6-7 (Ariz. App. May 9, 2016) (mem. decision).
¶4 On remand, the trial court considered and denied Gustafson's petition on the merits. In doing so, it noted that it had granted Gustafson's request to extend the due date of her reply to the state's response, but she had not filed a reply or requested an extension by the time of its ruling. Shortly after the ruling was entered, the court received Gustafson's motions "to extend defendant's reply" and "to extend amendment of defendant's postconviction petition," both dated two days before the due date of Gustafson's reply.
¶5 At the time, Gustafson filed a motion for rehearing in which she asserted, without explanation, that the Arizona Department of
Corrections (ADOC) had "denied [her] access to the court." Shortly thereafter, she filed a supplement to her motion, explaining that, on the day her reply was due, ADOC had not permitted her to leave her cell in time to send legal mail and, over the next several weeks, various errors by ADOC staff had prevented her from sending legal mail to the court. The trial court denied Gustafson's motions to extend and the motion for rehearing. This petition for review followed.
¶6 On review, Gustafson repeats the argument made in her motion for rehearing that ADOC interfered with her court access by failing to allow her to timely file her motions to extend. We need not address this argument, however, because the trial court nonetheless considered and denied those motions on their merits despite their apparent untimeliness, concluding there was no good cause for an extension of time to file her reply and amendments to her petition. See Ariz. R. Crim. P. 32.6(b). Gustafson has not argued that the court erred by doing so or that the court would have granted the motions had they been timely filed.
¶7 We grant review but deny relief.