State v. Jones ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
DONELL LEE JONES, JR., Petitioner.
No. 1 CA-CR 16-0284 PRPC
FILED 6-29-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2008-030410-001
CR2011-111925-001
The Honorable William L. Brotherton, Jr., Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Robert E. Prather
Counsel for Respondent
Donell Lee Jones, Jr., Buckeye
Petitioner
STATE v. JONES
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the court, in
which Judge Patricia K. Norris and Judge Jennifer B. Campbell joined.
J O H N S E N, Judge:
¶1 Donell Lee Jones, Jr., petitions this court for review from the
dismissal of his petition for post-conviction relief. We have considered the
petition for review and, for the reasons stated, grant review and deny relief.
¶2 A jury found Jones guilty of aggravated robbery in 2011. At
sentencing, Jones admitted he was convicted of a felony in 2008 and that he
was on probation in that case when he committed the offense in the 2011
case. The court imposed a term of 6.5 years' incarceration in the 2011
matter, revoked Jones's probation in the 2008 matter and imposed a
consecutive 5-year term in that case, with 820 days' credit for time served.
On the record, the Court noted that service of the sentence on the 2008
matter would begin on the date of the sentencing hearing. In the written
judgments in the two respective cases, however, the court stated that the
6.5-year sentence in the 2011 case would begin on the date of the sentencing
hearing, and that the 5-year sentence in the 2008 case would begin upon
release on the 2011 case. On the record and in its written judgments, the
court waived community supervision on the 2011 matter but not on the
2008 matter. Jones appealed his conviction in the 2011 case; this court
affirmed his conviction and sentence. State v. Jones, 1 CA-CR 12-0048 (Ariz.
App. Mar. 14, 2013) (mem. decision).
¶3 After counsel was unable to identify a colorable claim, Jones
filed a timely pro per petition for post-conviction relief, raising issues
regarding the trial, his sentence and purported ineffective assistance of
counsel. After briefing, the superior court dismissed Jones's petition. Jones
then filed a petition for review with the superior court, which that court
dismissed. He did not seek timely review from this court.
¶4 A few months later, Jones filed a "Motion for Correction of
Error," citing Arizona Rule of Criminal Procedure 24.4. He argued the
superior court erred at sentencing when it did not state its reasons for
imposing consecutive sentences; that there was a variance between the
transcript and the judgment about which sentence would be served first;
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STATE v. JONES
Decision of the Court
and that he was not advised he had a right to a jury trial on the probation
allegation. The superior court ruled Jones's claims were not timely under
Rule 24.4 or under Rule 32. The court, however, directed the State to
respond to the contention that a discrepancy existed between the transcript
and the sentencing order concerning the order in which the two consecutive
sentences are to be served. In response, the State argued there was no error
in the calculation or pronouncement of the consecutive sentences. The State
noted, "Assuming arguendo, as Defendant states, that the Department of
Corrections does not know which sentence runs first, there is still no
confusion as to the amount of time Defendant must serve." See Arizona
Revised Statutes section 13-708(C) (2015) (requiring imposition of
consecutive sentences when defendant has committed a felony while on
probation for a prior felony). The court then denied Jones's motion.
¶5 In his petition for review of the denial of his motion, Jones
argues the sentencing orders constituted newly discovered evidence of an
illegal sentence under Rule 32.1(e); the sentencing court erred by waiving
community supervision in the 2011 matter; the superior court considering
his motion for correction erred by not applying a Rule 32 analysis to the
motion; and the superior court erred by not considering the claims he made
in the petition he filed in 2015.
¶6 New matters not addressed to the superior court may not be
raised in a petition for review. State v. Ramirez, 126 Ariz. 464 (App. 1980).
For that reason, we will not address Jones's claims that the court erred by
waiving community supervision or denied him presentence credits. To the
extent that Jones is attempting to seek review of issues raised in his prior
petition, or to raise additional issues, those issues are precluded. The
superior court dismissed that petition, and Jones did not seek timely
review. See Rule 32.9(c).
¶7 As for Jones's claim that the written judgments and the court's
statements on the record are inconsistent with each other concerning which
of his two consecutive sentences is to be served first, he does not dispute
the lengths of the sentences imposed, nor does he contend the court lacked
the power to impose consecutive sentences. Nor does he identify any
prejudice he may suffer from the discrepancy.1
1 Pursuant to Rule 24.4, Comment, the superior court retains
jurisdiction to correct clerical mistakes in its judgments or orders in all
cases. See also State v. Lujan, 136 Ariz. 326, 329 (1983).
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STATE v. JONES
Decision of the Court
¶8 For the reasons stated, we grant review and deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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