Opinion
No. 2 CA-CR 2020-0144-PR
11-19-2020
The STATE of Arizona, Respondent, v. Angela Rene LEEMAN, Petitioner.
Joel Feinman, Pima County Public Defender, By David J. Euchner, Assistant Public Defender, Tucson and Kevin M. Burke, Pima County Legal Advocate, By A. Kate Bouche Verenna, Assistant Legal Advocate, Tucson Counsel for Petitioner
Joel Feinman, Pima County Public Defender, By David J. Euchner, Assistant Public Defender, Tucson and Kevin M. Burke, Pima County Legal Advocate, By A. Kate Bouche Verenna, Assistant Legal Advocate, Tucson Counsel for Petitioner
Presiding Judge Staring authored the opinion of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.
STARING, Presiding Judge:
¶1 Petitioner Angela Leeman seeks review of the trial court's order summarily dismissing her successive petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We review a court's denial of post-conviction relief for an abuse of discretion. State v. Roseberry , 237 Ariz. 507, ¶ 7, 353 P.3d 847 (2015). Leeman has not shown any such abuse here.
Effective January 1, 2020, our supreme court amended the post-conviction relief rules. Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019). In its order adopting the amended rules, the court stated, in relevant part, that the amendments apply to "all actions filed on or after January 1, 2020." Id. Leeman was convicted and sentenced in 1994, but the instant proceeding was initiated in January 2020; therefore, the amended rules apply.
¶2 Following a jury trial, Leeman was convicted of thirteen counts of child abuse and one count each of methamphetamine possession and possession of drug paraphernalia. The trial court sentenced her to concurrent and consecutive prison terms totaling sixty-one years. We affirmed Leeman's convictions on appeal, but ordered she be resentenced on certain counts. State v. Leeman , No. 2 CA-CR 94-0364 (Ariz. App. Mar. 14, 1996) (mem. decision). Leeman has since sought and been denied post-conviction relief multiple times, and this court has granted review but denied relief on her petitions for review in three of those instances. See State v. Leeman , No. 2 CA-CR 97-0286-PR (Ariz. App. May 21, 1998) (mem. decision); State v. Leeman , No. 2 CA-CR 2017-0419-PR, 2018 WL 1225122 (Ariz. App. Mar. 9, 2018) (mem. decision); State v. Leeman , No. 2 CA-CR 2019-0197-PR, 2020 WL 709611 (Ariz. App. Feb. 12, 2020) (mem. decision).
¶3 In 2020, Leeman again sought post-conviction relief in what is apparently her sixth such proceeding, arguing pursuant to Rule 32.1(c) that her sentences were not authorized by law, her convictions and sentences violated the prohibition against double jeopardy, and the sentencing court had "misapplied" the law related to " Hannah priors." She contended her claims were not precluded under newly amended Rule 32.2(b), as long as she provided "a reason" for her otherwise untimely filing, to wit, "her previous lawyers failed to identify and raise the issues." Leeman also maintained she was entitled to an evidentiary hearing.
See generally State v. Hannah , 126 Ariz. 575, 576-77, 617 P.2d 527, 528-29 (1980) (under former A.R.S. § 13-604(H), defendant subject to sentence enhancement for "prior conviction[ ]" when convicted of "successive but separate crimes" in single trial).
After the recent amendments to the rules, claims pursuant to Rule 32.1(c) are not necessarily precluded from being asserted in a successive proceeding. The current Rule 32.2(b) provides:
Claims for relief based on Rule 32.1(b) through (h) are not subject to preclusion under Rule 32.2(a)(3), but they are subject to preclusion under Rule 32.2(a)(2). However, when a defendant raises a claim that falls under Rule 32.1(b) through (h) in a successive or untimely post-conviction notice, the defendant must explain the reasons for not raising the claim in a previous notice or petition, or for not raising the claim in a timely manner. If the notice does not provide sufficient reasons why the defendant did not raise the claim in a previous notice or petition, or in a timely manner, the court may summarily dismiss the notice.
¶4 The trial court ordered the parties to file supplemental briefs, directing the state to address whether the court had "erred by considering the convictions of Count 1 and 3 as two prior felony convictions for the purposes of calculating the sentencing range for Count 5 and by considering Count 1 as a prior predicate felony conviction for the purposes of calculating the sentencing range for Count 8." The court also ordered Leeman to explain:
[H]ow the Rule 32.2(b) requirement that she show "sufficient reasons" for not raising the priors/sentencing range calculation issue referenced above has been met, given the fact that it was raised at the time of trial by counsel and, as a consequence, was patently apparent to Rule 32 counsel and appellate counsel for more than two decades and could have been addressed if it had merit. Defendant shall also address whether the new Rule 32.2(b) can be properly interpreted to allow ineffective assistance of counsel claims to avoid preclusion and, if so, cite any support for said interpretation.
¶5 After considering the initial and supplemental briefing, the trial court summarily dismissed Leeman's petition, finding she had not provided "sufficient reasons," as required by Rule 32.2(b), explaining why her otherwise untimely claims should not be subject to summary dismissal under Rule 32.2(b). The court further concluded that "[e]ven if defendant were able to present sufficient reason(s) to justify her untimely filing, she is not entitled to relief." This petition for review followed.
In light of our ruling that the trial court properly dismissed Leeman's claims, we do not address that portion of the court's ruling concerning the legality of her sentences or Leeman's arguments related thereto.
¶6 On review, Leeman argues the trial court abused its discretion for the following reasons: it improperly dismissed her claim that her sentences were not authorized by law because they violated double jeopardy; it committed "legal error by interpreting the phrase ‘sufficient reasons’ in Ariz. R. Crim. P. 32.2(b) inconsistently with the plain language and the drafters’ intent"; and, it improperly resolved factual disputes without conducting an evidentiary hearing. She specifically argues the court's ruling is contrary to the intent of the Rule 32 Task Force, to wit, to create a rule change to address the fact that society is not served by automatically precluding defendants from raising illegal sentencing claims. Leeman also maintains the court misinterpreted the "sufficient reasons" language in Rule 32.2(b) and instead applied a "good cause" standard, and contends the court's ruling "effectively prevents any untimely claims of illegal sentence to be raised."
¶7 Relying on the plain language of amended Rule 32.2(b), see Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, ¶ 8, 152 P.3d 490 (2007), the trial court rejected Leeman's suggestion that she need only provide a reason for her untimely filing, noting "[w]hat is conspicuously absent in [Leeman's] claim is the word ‘sufficient,’ a word which is conspicuously present in the rule." Indeed, on review, Leeman contends that although the task force added the word "sufficient" to Rule 32.2(b), the rule nonetheless permits a defendant like her to file a successive petition as long as she provides "a reason" for doing so.
¶8 Citing various comments, reports and minutes from the task force, the trial court noted that the committee recognized that "the interests of victims and finality of judgments were not furthered by holding a defendant beyond an authorized sentence date," nor was any "societal interest ... advanced" by doing so. However, the court added, "it is also clear" the task force "did not intend the preclusion exception to swallow the overall rule that claims for relief made pursuant to Rule 32.1(c) must be timely," and noted that a judge/member of the task force had stated that a defendant should have " ‘a legitimate reason for not raising [such claims] previously’ " in order to avoid preclusion. (Emphasis omitted.) The court further pointed out that the Arizona Prosecuting Attorneys Advisory Council (APAAC) had proposed that Rule 32.2(b) require a defendant to show "good cause" why a claim was not raised in a prior proceeding or in a timely manner. The court also recognized, however, that after discussing APAAC's proposal, the task force concluded that while the defendant provides the reason for not raising the claim in a prior proceeding or in a timely manner, "whether the reason is a good one is what the court decides." The court expressly noted that the task force had then added language requiring a defendant to provide "sufficient" reasons why the claim was not raised in a prior proceeding or in a timely manner. See Rule 32.2(b).
¶9 The trial court thus concluded:
The plain language of Rule 32.1(c) and the above comments, reports and minutes generated by the committee that was responsible for the revisions to Rule 32 and 33 of the Arizona Rules of Criminal Procedure that became effective on January 1, 2020 rebut defendant's claim that she need only provide "a reason for the untimeliness" in order for the Court to consider her petition. Instead, defendant must present a sufficient reason or reasons to avoid preclusion. It is with this standard that the Court considers defendant's argument that she should not be precluded from asserting her otherwise untimely multiplicity argument.
¶10 Notably, as the trial court correctly stated, Leeman's trial attorney raised multiplicity arguments at trial and challenged the necessity of consecutive sentences at sentencing. In her petition below and on review, Leeman characterizes counsel's arguments as a "quick reference ... to a multiplicity issue," a characterization the court correctly found inaccurate. During the settling of jury instructions, Leeman's attorney argued extensively that the charges were multiplicitous, and stated, "for the record, let me say this is multiplicity." And, at sentencing, relying on Hannah , counsel challenged the necessity of consecutive sentences.
¶11 The trial court thus concluded appellate and Rule 32 counsel "may very well have considered the arguments now being raised and concluded, based on their review of the record and consideration of the law in effect at the time, that they could not present a good faith multiplicity argument." The court also noted that on appeal, this court had "addressed numerous sentencing questions, including the specific question about whether Counts 1 and 8 should run consecutively, and [had] ruled in the affirmative."
In a declaration signed in March 2020, Leeman's appellate and first Rule 32 attorney, Frank Leto, stated that although his recollection was "hazy," he had "fought hard to obtain relief" from the cumulative sentences in this case; he had not raised "the issue that [Leeman's] multiple convictions and multiple sentences violated double jeopardy," or that the sentences based on "Hannah priors" were improper; and, he had never "strategically decided to leave out an arguably meritorious legal issue" in a brief.
¶12 Although Leeman's counsel did not challenge the imposition of consecutive sentences on appeal, the state filed a cross appeal arguing that the sentences for nine of the child abuse convictions, rather than only two, should have been consecutive. See Leeman , No. 2 CA-CR 94-0364, at 16–18. And, notably, this court not only rejected Leeman's sentencing arguments on appeal, but we also rejected the state's argument on cross appeal, specifically concluding that "the trial court [had] correctly ordered the sentences for [two of the child abuse] counts to run consecutively ...." Id. at 16–18. Moreover, we noted, "We have searched the record for fundamental error and have found none." Id. at 19.
Since the repeal of A.R.S. § 13-4035, we no longer search the record for fundamental error. See 1995 Ariz. Sess. Laws, ch. 198, § 1.
¶13 Accordingly, a challenge of the legality of Leeman's consecutive sentences is arguably precluded because it was actually adjudicated on appeal. See Ariz. R. Crim. P. 32.2(a)(2), (b) (claims for relief based on Rule 32.1(b) through (h) subject to preclusion if finally adjudicated on merits on appeal or in previous post-conviction proceeding). Although Leeman did not raise on appeal the discrete argument she now raises concerning her sentences, this court nonetheless was presented with an argument related to the propriety of Leeman's consecutive sentences, and found them to be proper, in addition to finding no fundamental error on appeal. Leeman , No. 2 CA-CR 94-0364, at 16-17, 19.
¶14 Leeman also suggests, as she did below, that her "previous lawyers" were "clearly ineffective" for failing to raise the sentencing issue she now raises, essentially arguing that the mere failure to identify and raise a claim, without more, is a sufficient reason to avoid dismissal. Leeman contends that, "in reality, every claim of an illegal sentence involves ineffective counsel because ... attorneys are supposed to know the law and raise such claims," and asserts that "Rule 32.1(c) is a subset of ineffective assistance claims."
Because appellate counsel represented Leeman in her first Rule 32 proceeding, she asserted her second Rule 32 attorney was ineffective.
In her fourth Rule 32 petition, Leeman essentially raised the same arguments now before us, albeit as claims of ineffective assistance of trial and appellate counsel. She asserted her child abuse convictions were multiplicitous and constituted double jeopardy violations, maintaining trial counsel had been "fully aware" of this, and also claimed her convictions did not qualify as Hannah priors.
¶15 While we recognize the tension between summary dismissal and a defendant's right to raise a claim that the sentence imposed was not authorized by law, we conclude, based on the record in this case, that the word "sufficient" in Rule 32.2(b) necessarily has to encompass more than the mere failure to raise a specific issue. Nor, based on this record, do we find that the trial court abused its discretion by concluding that Leeman's inclusion of the discovery of a more nuanced argument more than twenty years after she was convicted did not constitute a sufficient reason to avoid preclusion under Rule 32.2(a)(2) or the requirements of Rule 32.2(b). Leeman's apparent assertion that any reason constitutes a sufficient reason for an untimely filing would render the addition of that word to the rule meaningless. See State v. Windsor , 224 Ariz. 103, ¶ 6, 227 P.3d 864 (App. 2010) ("When called upon to interpret a statute, we consider its plain language, giving meaning to each word and phrase ‘so that no part is rendered void, superfluous, contradictory or insignificant.’ ") (quoting State v. Larson , 222 Ariz. 341, ¶ 14, 214 P.3d 429 (App. 2009) ).
¶16 And, even assuming, without finding, that the meaning of the word "sufficient," as used in Rule 32.2(b), is ambiguous, it is nonetheless clear that the task force, and by extension the Arizona Supreme Court, intended that the trial court act as the gatekeeper to determine if the reason provided to avoid a finding of untimeliness is sufficient. It thus bears repeating that the task force stated and the court recognized that, while it is the defendant's job to provide the reason for the untimely filing, "whether the reason is a good one is what the court decides." That is exactly the determination the court made here. Based on the record before us, which the court clearly considered, we cannot say it abused its discretion, or that it erred as a matter of law by summarily dismissing Leeman's petition.
¶17 Finally, Leeman argues the trial court improperly weighed the evidence by dismissing her claims without conducting an evidentiary hearing. She contends the court made four "errors of law" by considering and evaluating certain evidence as a basis to reject her argument that her previous attorneys "somehow missed the multiplicity argument." In summary, the alleged errors involve the court's assessment of trial counsel's request for greater specificity of each of the child abuse counts, the court's evaluation of appellate counsel Leto's declaration, its ruling that Leeman did not provide a sufficient reason to avoid summary dismissal, and its reliance on this court's ruling on appeal. A defendant is entitled to a hearing if she presents a colorable claim for relief, that is, she "has alleged facts which, if true, would probably have changed the verdict or sentence." State v. Amaral , 239 Ariz. 217, ¶¶ 10-11, 368 P.3d 925 (2016) (emphasis omitted). For all of the reasons previously discussed, we conclude Leeman has not sustained her burden to show the court abused its discretion by summarily dismissing her claim. In this regard, we also point to the court's concise and well-reasoned summary of the basis for its ruling:
The purpose of the change to Rule 32.2(b) is not lost on the Court. Keeping a defendant in prison longer than is intended by the sentencing judge or authorized by law through blind adherence to procedural timelines serves no legitimate purpose. However, permitting a defendant, who has been competently represented by counsel, and whose case has been subject to extensive judicial review, to bring piecemeal litigation asserting new theories based on a[n] alternative interpretation of the facts and permitting that defendant to ignore all procedural time requirements also serves no legitimate purpose. Rule 32.2(b), as amended, was clearly subject to significant scrutiny and discussion by an impressive group of judges, attorneys, and support staff. Contrary to defendant's claim that she need only provide a reason for her untimeliness, the rule unequivocally requires that a defendant present sufficient reasons why a request for post-conviction relief was not timely made. Here, the Court finds that defendant has not met this burden.
¶18 For the foregoing reasons, we grant review but deny relief.