State v. Gunter ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
STEVEN FOSTER GUNTER, Petitioner.
No. 1 CA-CR 13-0153 PRPC
FILED 4-23-2015
Appeal from the Superior Court in Yavapai County
No. P1300CR20090779
P1300CR201001265
P1300CR201100738
The Honorable Tina R. Ainley, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Yavapai County Attorney’s Office, Prescott
By Steven John Sisneros
Counsel for Respondent
Steven Foster Gunter, Florence
Petitioner
STATE v. GUNTER
Decision of the Court
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Maurice Portley joined.
T H O M P S O N:
¶1 Petitioner Steven Foster Gunter petitions this court for review
from the dismissal of his notice of post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
and deny relief.
¶2 Gunter pled no contest in two separate cases to sexual assault,
kidnapping, theft of a credit card, unlawful flight, endangerment, criminal
damage, theft and issuing a bad check. This resulted in the revocation of
Gunter's probation for criminal trespass, possession of burglary tools and
resisting arrest in a third, earlier case. The trial court sentenced Gunter to
an aggregate term of eighteen years' imprisonment for the three cases.
Gunter now seeks review of the summary dismissal of his second notice of
post-conviction relief and the accompanying memorandum.1 We have
jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).
¶3 Below, Gunter claimed his counsel in his first post-conviction
relief proceeding was ineffective when he failed to raise issues regarding
the legality and/or sufficiency of the grand jury process, the sufficiency of
the indictments and whether prosecutorial misconduct occurred during the
grand jury proceedings and/or the preparation of the indictments. Gunter
also argued counsel was ineffective when he failed to argue the trial court
lacked jurisdiction over Gunter's cases because of these alleged deficiencies
in the grand jury process and the indictments. Finally, Gunter claimed
post-conviction relief counsel was ineffective when he failed to argue that
Gunter's trial counsel should have raised these issues before Gunter entered
his pleas.
¶4 We deny relief. Rather than set forth specific claims
supported by legal argument in his petition for review, Gunter attempts to
1While the order of dismissal below and the petition for review identify all
three cases, Gunter only sought post-conviction relief in the two later cases.
(C 52.)
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STATE v. GUNTER
Decision of the Court
incorporate by reference the petition he filed below into his petition for
review. This is inappropriate. State v. Moore, 125 Ariz. 528, 529, 611 P.2d
115, 116 (App. 1980). A petition for review may not incorporate by
reference any issue or argument. The petition must set forth specific claims,
present sufficient argument supported by legal authority and include
citation to the record. State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238
(App. 1991); Ariz. R. Crim. P. 32.5, 32.9(c). While Gunter's petition for
review does identify the general issues he raised below, merely mentioning
an issue is not enough. State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 94 P.3d
1119, 1147 n.9 (2004)
¶5 Even if we assume arguendo that Gunter properly presented
the issues for review, we deny relief because Gunter could have raised these
issues in a timely petition for post-conviction relief after the dismissal of his
of-right petition on November 16, 2012.2 A defendant who seeks to claim
ineffective assistance of the defendant's "of-right" post-conviction relief
counsel must file the second notice of post-conviction relief within thirty
days of the issuance of the final order in the post-conviction of-right
proceedings. Ariz. R. Crim. P. 32.4(a); State v. Pruett, 185 Ariz. 128, 131, 912
P.2d 1357, 1360 (App. 1995). Gunter did not file a timely second notice of
post-conviction relief. Gunter's claim that he is entitled to relief from the
deadline pursuant to Rule 32.1(f) because of "head trauma" he allegedly
suffered in an automobile accident in 2010 fails because Rule 32.1(f) applies
only to the failure to file a timely notice of appeal or a notice of post-
conviction relief of-right. This is not an of-right proceeding. Ariz. R. Crim.
P. 32.1(f).
¶6 If we assume arguendo that Gunter properly presented the
issues for review in a timely fashion, we also deny relief because Gunter
waived these claims when he entered his pleas. A plea agreement waives
all non-jurisdictional defenses, errors and defects which occurred prior to
the plea. State v. Moreno, 134 Ariz. 199, 200, 655 P.2d 23, 24 (App. 1982). The
waiver of non-jurisdictional defects includes deprivations of constitutional
rights. Tollett v. Henderson, 411 U.S. 258, 267 (1973). Despite Gunter's
arguments to the contrary, his claims regarding the grand jury and the
indictments are not "jurisdictional." "Jurisdiction" means "the courts'
statutory or constitutional power to adjudicate the case." United States v.
Cotton, 535 U.S. 625, 630 (2002) (quoting Steel Co. v. Citizens for Better Env’t,
523 U.S. 83, 89 (1998). Defects in an indictment are not "jurisdictional" and
2There is nothing in the record to suggest Gunter filed a petition for review
of the dismissal of his of-right petition for post-conviction relief.
3
STATE v. GUNTER
Decision of the Court
do not deprive a court of its power to adjudicate a case. Id., 535 U.S. at 630-
631.
¶7 Gunter also argued below that the recent United States
Supreme Court decision in Martinez v. Ryan, __ U.S. __, 132 S. Ct. 1309
(2012), constitutes a significant change in the law that allows him to raise
an untimely claim of ineffective assistance of counsel. Gunter is incorrect.
Martinez held, "Where, under state law, claims of ineffective assistance of
trial counsel must be raised in an initial-review collateral proceeding, a
procedural default will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if, in the initial-review
collateral proceeding, there was no counsel or counsel in that proceeding
was ineffective." Martinez, __ U.S. at __, 132 S.Ct. at 1320. This simply
means Gunter can seek habeas corpus relief in federal court based on
ineffective assistance of trial counsel if he can first show either he had no
counsel in his first post-conviction relief proceeding or counsel in his first
post-conviction relief proceeding was ineffective. Martinez does not require
a state court to consider all untimely claims of ineffective assistance of
counsel raised in post-conviction proceedings.
¶8 We grant review and deny relief.
:ama
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