Opinion
No. 1 CA-CR 15-0508 PRPC
06-22-2017
STATE OF ARIZONA, Respondent, v. KENNETH E. SHATZER, Petitioner.
COUNSEL Yavapai County Attorney's Office, Prescott By Dana E. Owens Counsel for Respondent Kenneth E. Shatzer, Florence Petitioner
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Yavapai County
No. P1300CR20081396 P1300CR20081417
The Honorable Tina R. Ainley, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Yavapai County Attorney's Office, Prescott
By Dana E. Owens
Counsel for Respondent
Kenneth E. Shatzer, Florence
Petitioner
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Randall M. Howe and Judge Maria Elena Cruz joined.
SWANN, Judge:
¶1 Kenneth E. Shatzer petitions for review of the dismissal of his petition for post-conviction relief. For the reasons that follow, we grant review but deny relief.
¶2 In June 2009, Shatzer pled guilty to one count of child molestation, a class 2 felony and dangerous crime against children in the first degree; one count of sexual exploitation of a minor, a class 2 felony and dangerous crime against children in the first degree; two counts of attempted sexual exploitation of a minor, class 3 felonies and dangerous crimes against children in the second degree; and one count of misconduct involving weapons, a class 4 felony. The superior court imposed consecutive 10-year prison terms for the class 2 felonies and lifetime probation for the remaining convictions.
¶3 Shatzer timely filed a notice of post-conviction relief, raising a claim of ineffective assistance of counsel. His appointed post-conviction counsel was unable to find any colorable claims. Shatzer filed a subsequent in propria persona petition, arguing his sentence was unlawful and excessive. The superior court dismissed the Rule 32 proceedings, and this court denied review. The Arizona Supreme Court also denied review.
¶4 In June 2015, Shatzer filed a second notice for post-conviction relief, again challenging his sentence and arguing that the unlawful sentence deprived the superior court of subject matter jurisdiction. The state responded, and the court dismissed the notice, finding the claims were precluded. This timely petition for review followed.
¶5 "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, 393, ¶ 4 (App. 2007).
¶6 Shatzer's claims were untimely and precluded. He cannot raise these claims in an untimely Rule 32 proceeding because an untimely notice may only raise claims pursuant to Rule 32.1(d), (e), (f), (g), or (h).
Rule 32.4(a). Shatzer's claims fall under Rule 32.1(b) and (c) and are not exceptions to the rule of preclusion. See Rules 32.1; 32.2 (a), (b); cf. State v. Peek, 219 Ariz. 182, 183, ¶ 4 (2008) (waiving requirement that a claim of illegal sentence be timely presented when state joined request for court to render a decision on substantive grounds). Moreover, the asserted claims were precluded because Shatzer already raised, or could have raised, in his initial Rule 32 proceedings, the purported unlawfulness of his sentence and the jurisdictional issue. See Rule 32.2(a). Also, Shatzer did not explain to the superior court why his successive notice was untimely. See State v. Bortz, 169 Ariz. 575, 577 (App. 1991) (denying relief upon review of the trial court's denial of post-conviction relief where petitioner failed to meet the "heavy burden in showing the court why the non-compliance [with the timelines set forth in Rule 32.9] should be excused" (citation omitted)). And despite Shatzer's implicit contention to the contrary, we need not review for fundamental error in post-conviction relief proceedings. State v. Smith, 184 Ariz. 456, 459 (1996).
¶7 Finally, Shatzer summarily asserts the superior court violated his constitutional rights by dismissing his Rule 32 claims before he filed a reply to the state's response. Shatzer provides no substantive argument or supporting authority. Merely mentioning a potential issue is insufficient. State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101 (2004). The superior court did not abuse its discretion by dismissing Shatzer's second Rule 32 notice.
¶8 Accordingly, we grant review but deny relief.