Opinion
2 CA-CR 2022-0183-PR
03-06-2023
The State of Arizona, Respondent, v. Mark Anthony Lugo, Petitioner.
Mark A. Lugo, Florence In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR035437001 The Honorable Javier Chon-Lopez, Judge. REVIEW GRANTED; RELIEF DENIED
Mark A. Lugo, Florence
In Propria Persona
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vasquez and Judge O'Neil concurred.
MEMORANDUM DECISION
EPPICH, PRESIDING JUDGE:
¶1 Mark Lugo seeks review of the trial court's ruling summarily dismissing his twelfth petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Lugo has not met his burden of establishing such abuse here.
¶2 After a 1992 jury trial, Lugo was convicted of sexual conduct with a minor, attempted sexual conduct with a minor, sexual abuse, and child molestation. This court affirmed Lugo's convictions on appeal but remanded the case for resentencing on two of the four counts. State v. Lugo, No. 2 CA-CR 92-0561 (Ariz. App. Jan. 31, 1994) (mem. decision). Lugo was resentenced in August 1995. This court granted partial relief on review in Lugo's first proceeding for post-conviction relief. State v. Lugo, No. 2 CA-CR 2007-0336-PR (Ariz. App. Apr. 30, 2008) (mem. decision). We denied relief on review in seven subsequent proceedings. State v. Lugo, No. 2 CA-CR 2022-0037-PR (Ariz. App. June 3, 2022) (mem. decision); State v. Lugo, No. 2 CA-CR 2019-0285-PR (Ariz. App. May 11, 2020) (mem. decision); State v. Lugo, No. 2 CA-CR 2018-0291-PR (Ariz. App. Jan. 10, 2019) (mem. decision); State v. Lugo, No. 2 CA-CR 2014-0092-PR (Ariz. App. Aug. 26, 2014) (mem. decision); State v. Lugo, No. 2 CA-CR 2011-0283-PR (Ariz. App. Jan. 12, 2012) (mem. decision); State v. Lugo, No. 2 CA-CR 2011-0041-PR (Ariz. App. May 19, 2011) (mem. decision); State v. Lugo, No. 2 CA-CR 2009-0201-PR (Ariz. App. Dec. 2, 2009) (mem. decision).
In addition, Lugo sought and was denied post-conviction relief in 2014 and twice in 2019. He did not seek review of those rulings.
¶3 In September 2022, Lugo simultaneously filed a notice of and petition for post-conviction relief. He admitted that his notice was untimely, but he argued that was not his fault because trial counsel, appellate counsel, and Rule 32 counsel had all "failed to perform their duty in investigat[ing]" his claims. In addition, he asserted that he had only discovered the basis of his claims in March 2022. Substantively, Lugo argued that his constitutional rights had been violated because the trial court lacked jurisdiction to resentence him in 1995 and to amend count four of his indictment at trial in 1992. Relatedly, he maintained that counsel had been ineffective in failing to raise these issues sooner. Lugo also seemed to suggest that a detective had "[i]llegally obtained evidence" in his case, leading to prosecutorial misconduct, a violation of his right to counsel, and interference with plea negotiations. He also challenged the constitutionality of the child molestation statute and alleged an Eighth Amendment violation.
In July 2022, Lugo filed a motion for enforcement to remand for resentencing, but the trial court ordered him to file a Rule 32 notice that provided "the reasons for not raising the claim in one of his 11 previous petitions for post-conviction relief or for not raising the claim in a timely manner." Lugo then filed his current notice and petition, along with a motion for trial, a motion for stay, and a petition to supplement the petition.
¶4 In response, the state argued that Lugo's claims were precluded because "they could have been, or were, raised in his prior appeals and post-conviction proceedings." Lugo filed a reply, as well as several motions to supplement his petition.
¶5 In an October 2022 ruling, the trial court summarily dismissed Lugo's petition. The court determined that his claims were untimely and could not be raised in a successive proceeding and that Lugo had failed to "provide sufficient reasons why he did not raise the claims in previous notices or petitions or in a timely manner." It explained, "While [Lugo] blames previous trial, appellate and post-conviction counsel for not making these claims, [he] has filed numerous petitions for post-conviction relief, and he personally failed to make the claims as well." The court also rejected his assertion that he had only discovered his claims in March 2022, reasoning that "the lack of jurisdiction issue could have and should have been presented at trial, on appeal or in one of the previous 11 petitions for post-conviction relief" and is, in any event, "not colorable." The court recounted the numerous claims of ineffective assistance of counsel alleged by Lugo in previous Rule 32 proceedings, explaining that Lugo's "interpretation of the . . . post-conviction rules result in piecemeal litigation that the preclusion rules prohibit." Lugo filed a motion for rehearing, which the court denied. This petition for review followed.
¶6 On review, Lugo repeats his claim that the trial court lacked jurisdiction over the 1995 resentencing. He maintains that this court's January 31, 1994 memorandum decision was "the last ruling in this case" and all proceedings thereafter were "null and void." And because this court vacated two of his sentences as part of that 1994 appeal, he suggests the time has passed in which he could be resentenced and he is therefore entitled to "absolute discharge." He again maintains he only discovered this "lack of jurisdiction" in 2022, "after years of research."
We do not address the other arguments raised below that Lugo has failed to reassert on review. See Ariz. R. Crim. P. 32.16(c)(4) ("A party's failure to raise any issue that could be raised in the petition for review or cross-petition for review constitutes a waiver of appellate review of that issue.").
¶7 Pursuant to Rule 32.1(a), a defendant may seek post conviction relief based on the ground that "the defendant's conviction was obtained, or the sentence was imposed, in violation of the United States or Arizona constitutions." Rule 32.1(b) provides relief if "the court did not have subject matter jurisdiction to render a judgment or to impose a sentence on the defendant."
¶8 A defendant is generally precluded from relief under Rule 32.1(a) based on any ground "finally adjudicated on the merits in an appeal or in any previous post-conviction proceeding" or "waived at trial or on appeal, or in any previous post-conviction proceeding." Ariz. R. Crim. P. 32.2(a)(2)-(3). A claim based on Rule 32.1(b) is not subject to preclusion under Rule 32.2(a)(3) but is under Rule 32.2(a)(2). Ariz. R. Crim. P. 32.2(b). However, when a defendant raises a claim under Rule 32.1(b) in a successive or untimely 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." Ariz. R. Crim. P. 32.2(b). And the trial court may summarily dismiss the notice if the defendant fails to "provide sufficient reasons." Id.
¶9 Even assuming Lugo's claim were one of subject-matter jurisdiction under Rule 32.1(b), such that it is not subject to preclusion under Rule 32.2(a)(3), we cannot say the trial court abused its discretion in determining he had failed to provide sufficient reasons for not raising the claim in a previous notice or petition or in a timely manner. See State v. Payne, 223 Ariz. 555, ¶ 6 (App. 2009) (subject-matter jurisdiction is power to hear and determine particular type of case). Indeed, Lugo has failed to explain on review how the court erred in determining his claim was subject to summary dismissal. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (claim waived where defendant fails to cite relevant authority and develop argument in meaningful way).
To the extent Lugo contends the trial court erroneously treated his July 2022 motion for enforcement as a Rule 32 proceeding, we disagree. Because the time had long passed to appeal his resentencing, a postconviction proceeding was the proper avenue for raising his claims. See A.R.S. §§ 13-4031, 13-4033(A), 13-4233; Ariz. R. Crim. P. 31.2(a)(2), 32.1(f), 32.3(a)-(b).
¶10 But even disregarding waiver, previous counsel's failure to raise the issue sooner is not a sufficient reason under Rule 32.2(b) given that, as the trial court pointed out, Lugo has represented himself for the past several Rule 32 proceedings. Likewise, Lugo's assertion that he only discovered the claim in 2022 is not a sufficient reason. See State v. Harden, 228 Ariz. 131, ¶¶ 3-4 (App. 2011) (trial court did not err in concluding defendant's reason-"discovery" of ambiguity in probation terms-for filing tardy Rule 32 notice insufficient to explain delay). Notably, the statute upon which Lugo largely relies in support of his lack-of-jurisdiction claim-A.R.S. § 13-121-has remained unchanged since 1978. 1977 Ariz. Sess. Laws, ch. 142, § 40.
¶11 Accordingly, we grant review but deny relief.