State v. Stewart ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MARK LEON STEWART, Petitioner.
No. 1 CA-CR 13-0532 PRPC
FILED 3-3-2015
Petition for Review from the Superior Court in Maricopa County
No. CR2005-109935-001
The Honorable David M. Talamante, Judge
The Honorable Bruce R. Cohen, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Mark Leon Stewart, Florence
Petitioner
STATE v. STEWART
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge John C. Gemmill and Judge Kenton D. Jones joined.
K E S S L E R, Judge:
¶1 Petitioner Mark Leon Stewart 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,
but deny relief.
¶2 Stewart entered into a plea agreement with the State and pled
guilty to sexual conduct with a minor and three counts of attempted sexual
exploitation of a minor. The trial court sentenced him to 23.5 years’
imprisonment for sexual conduct with a minor and placed him on lifetime
probation for each count of attempted sexual exploitation of a minor.
Stewart now seeks review of the summary dismissal of his second petition
for post-conviction relief. We have jurisdiction pursuant to Arizona Rule
of Criminal Procedure 32.9(c).
¶3 Stewart claims that the trial court violated his constitutional
right to due process during sentencing when it “double counted” elements
of the offense of sexual conduct with a minor as aggravating factors.
Stewart also argues that the imposition of lifetime probation violated his
right to equal protection. In his first petition for post-conviction relief in
2006, Stewart raised the due process claim, and he could have raised the
equal protection claim. Any claim a defendant raised or could have raised
in an earlier post-conviction relief proceeding is precluded. Ariz. R. Crim.
P. 32.2(a). None of the exceptions under Rule 32.2(b) apply. Although
Stewart argues that the trial court should have allowed him to raise these
issues in an untimely fashion because they are new theories he only recently
discovered, this is not a cognizable exception under Rule 32.2(b).
¶4 Stewart further alleges that his claims should not be
precluded as untimely because the prison’s law library lacked sufficient
resources to permit him to bring his claims in a timely fashion. This
argument is unavailing. Stewart asserts that the prison has lacked adequate
legal resources since 1997, yet he failed to make this argument in his first
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STATE v. STEWART
Decision of the Court
petition for post-conviction relief in 2006. Under Rule 32.2, Stewart is
precluded from making this argument now.
¶5 Moreover, while it is true that claims implicating certain
constitutional rights are not subject to preclusion, State v. Espinosa, 200 Ariz.
503, 505, ¶ 7, 29 P.3d 278, 280 (App. 2001), claims alleging the constitutional
illegality of a defendant’s conviction or sentence are subject to the general
preclusion rule. State v. Swoopes, 216 Ariz. 390, 399, ¶ 28, 166 P.3d 945, 954
(App. 2007). Stewart raises claims of due process and equal protection
violations in a second petition for post-conviction relief pursuant to Rule
32.1(a). These claims are subject to preclusion under Rule 32.2 and barred
by an untimely filing pursuant to Rule 32.4. Stewart fails to articulate an
argument that his constitutional claims fall within an exception to this
general preclusion rule. See id.
¶6 We therefore grant review and deny relief.
:ama
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