State v. Maher ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
WILLIAM THOMAS MAHER, Petitioner.
No. CR 13-0327 PRPC
FILED 12-23-2014
Petition for Review from the Superior Court in Yavapai County
No. P1300CR201001252
The Honorable Tina R. Ainley, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Yavapai County Attorney’s Office, Prescott
By William A. Kunisch
Counsel for Respondent
William Thomas Maher, Douglas
Petitioner Pro Se
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Maurice Portley and Judge Jon W. Thompson joined.
STATE v. MAHER
Decision of the Court
G O U L D, Judge:
¶1 Petitioner William Thomas Maher seeks review of the trial
court’s summary dismissal of his petition for post-conviction relief under
Rule 32, Ariz. R. Crim. P. We grant review, but deny relief.
¶2 On April 25, 2010, Maher pled guilty to sale of dangerous
drugs (Methamphetamine), a class two felony, and possession of dangerous
drugs (Xanax), a class four felony. In accordance with the terms of the plea
agreement, the trial court sentenced Maher on that same date to a mitigated
five-year prison term (flat time) on the conviction for sale of dangerous
drugs and a concurrent mitigated 1.6-year prison term on the conviction for
possession of dangerous drugs.
¶3 On September 25, 2012, Maher filed a motion for an order
nunc pro tunc clarifying the sentencing minute entry order. In the motion,
Maher requested that the trial court correct the sentencing minute entry
order to reflect that the five-year sentence for the conviction for sale of
dangerous drugs was imposed pursuant to Arizona Revised Statute
(“A.R.S.”) § 13-3407(F) (2010) rather than A.R.S. § 13-3407(E) because the
aggregate amount of the methamphetamine was less than the statutory
threshold amount. In explaining the reason for the motion, Maher claimed
that the Arizona Department of Corrections had incorrectly calculated his
sentence as a “calendar year” sentence eliminating his eligibility for
executive clemency in the form of commutation of sentence. In ruling on
the motion, the trial court stated that the sentence was imposed pursuant
to A.R.S. § 13-3407(E) because the offense involved methamphetamine and
there is no threshold amount required under this statute.
¶4 On March 18 2013, Maher filed a notice and petition for post-
conviction relief in which he argued he was entitled to relief from his illegal
sentence on the conviction for sale of dangerous drugs because it was the
result of a mutual mistake of fact. Specifically, he advanced the same
argument made in his earlier motion for clarification that the classification
of his five-year sentence on the conviction for sale of dangerous drugs as a
calendar year sentence under A.R.S. § 13-3407(F) was illegal because the
amount of methamphetamine was below the statutory threshold amount.
The trial court summarily dismissed the petition as untimely.
¶5 We review the summary dismissal of a petition for post-
conviction relief for abuse of discretion. State v. Bennett, 213 Ariz. 562, 566,
¶ 17, 146 P.3d 63, 67 (2006). We agree with the trial court that Maher’s claim
regarding his sentencing was subject to summary dismissal as untimely.
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STATE v. MAHER
Decision of the Court
Pursuant to Rule 32.4(a), a defendant who pleads guilty must file his notice
of post-conviction relief within ninety days after the entry of judgment and
sentence. Maher was sentenced April 25, 2010. Thus, to be timely, his
notice of post-conviction relief needed to be filed prior to July 25, 2010.
Maher did not file his notice and petition until March 13, 2013, more than
two years late.
¶6 Any notice “not timely filed may only raise claims pursuant
to Rule 32.1(d), (e), (f), (g), and (h). Ariz. R. Crim. P. 32.4(a). The claim
raised by Maher challenging the legality of his sentence does not fall within
any of these exceptions to preclusion. Our supreme court has made it clear
that the rule of preclusion includes untimely claims regarding the legality
of a sentence. State v. Shrum, 220 Ariz. 115, 117–120, ¶¶ 3–23, 203 P.3d 1175,
1177–1180 (2009).
¶7 Maher attempts to argue on review that the untimeliness on
his notice and petition should be excused because he just recently learned
that his sentence was illegally classified as a “calendar year” sentence when
the Arizona Department of Corrections determined that he was statutorily
ineligible to apply for commutation of sentence because he was serving a
“calendar year” sentence. A review of the record, however, reveals that the
plea agreement signed by Maher clearly indicates that the sentence on the
conviction for sale of dangerous drugs was to be a flat time “calendar year”
sentence. On this record, Maher has not sustained his burden establishing
the trial court abused its discretion in summarily dismissing the petition as
untimely.
¶8 Accordingly, although we grant review, we deny relief.
:ama
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