State v. Gibler ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
KENNETH CURTIS GIBLER, Petitioner.
No. 1 CA-CR 19-0066 PRPC
FILED 9-10-2019
Petition for Review from the Superior Court in Maricopa County
No. CR2013-416860-001
The Honorable Michael W Kemp, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Andrea L Kever
Counsel for Respondent
Kenneth Curtis Gibler, Kingman
Petitioner
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Samuel A. Thumma and Chief Judge Peter B. Swann joined.
STATE v. GIBLER
Decision of the Court
M c M U R D I E, Judge:
¶1 Kenneth Gibler petitions this court for review from the
dismissal of his petition for post-conviction relief filed according to Arizona
Rule of Criminal Procedure (“Rule”) 32. We have considered the petition
for review and, for the reasons stated, grant review but deny relief.
¶2 Gibler pled guilty to three charges of attempted molestation
of a child. On October 3, 2014, the superior court entered judgment and
sentenced Gibler to a 12-year prison term to be followed by concurrent
terms of lifetime probation.
¶3 Gibler filed an untimely notice and petition for post-
conviction relief (“Notice”) on December 11, 2018. See Ariz. R. Crim P.
32.4(a)(2)(C) (“In a Rule 32 of-right proceeding, a defendant must file the
notice no later than 90 days after the entry of judgment and sentence.”).
Without providing supporting argument, Gibler sought a reduced sentence
based on summary assertions that his constitutional rights were violated,
including his Sixth Amendment right to competent representation by
counsel. Gibler also claimed his delay in filing the notice was not his fault
because he had instructed his attorney to file “a timely notice of appeal[.]”
¶4 The superior court summarily dismissed the Notice, and this
timely petition for review followed. “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). The
petitioner bears the burden of establishing an abuse of discretion. State v.
Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011).
¶5 Gibler does not adequately explain why he commenced the
Rule 32 proceedings almost four years after the Notice was due. His
assertion that he “had no clue what a Rule 32 entailed and the reason for it”
is insufficient because he concedes he received written notice of his rights
of review at sentencing. That notice expressly states: “If you want a full
copy of the rules governing appeals and post-conviction relief, the clerk of
the court in the county where you were convicted will send you one upon
request.” Gibler does not claim he attempted to obtain a copy of Rule 32
from the court clerk.
¶6 Gibler fails to meet his burden of establishing the superior
court abused its discretion. See Ariz. R. Crim. P. 32.2(b) (“If the notice does
not . . . provide reasons why defendant did not raise the claim . . . in a timely
manner, the court may summarily dismiss the notice.”); A.R.S. § 13-4234(G)
2
STATE v. GIBLER
Decision of the Court
(“The time limits [in Rule 32] are jurisdictional, and an untimely filed notice
or petition shall be dismissed with prejudice.”).
¶7 Therefore, although we grant review, we deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
3