State v. Bustos ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Appellee,
v.
THOMAS KEITH BUSTOS, Appellant.
No. 1 CA-CR 21-0384
FILED 8-9-2022
Appeal from the Superior Court in Yavapai County
No. V1300CR201280071
The Honorable Tina R. Ainley, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Tucson
By Diane L. Hunt
Counsel for Appellee
Law Office of Shannon Peters, Phoenix
By Shannon Peters
Counsel for Appellant
STATE v. BUSTOS
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the court, in which
Presiding Judge David D. Weinzweig and Judge D. Steven Williams joined.
H O W E, Judge:
¶1 Thomas Bustos appeals from a contested probation-violation
hearing and disposition reinstating a five-year term of probation. For the
following reason, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In 2013, a jury convicted Bustos of kidnapping, burglary,
stalking, three counts of aggravated assault, and robbery. The trial court
sentenced him to concurrent terms of imprisonment for the kidnapping,
robbery, and aggravated assault counts, the longest of which was five years,
to be followed by a ten-year probation term for the burglary and stalking
counts. State v. Bustos, No. 1 CA-CR 13-0199, 2014 WL 457672, at *2 ¶ 14
(Ariz. App. Feb. 4, 2014). Bustos appealed, arguing only that the trial court
erred in submitting to the jury a lesser-included offense instruction for
burglary. Id. at *3 ¶ 14. This court affirmed Bustos’s convictions and
sentences. Id. at *5 ¶ 25.
¶3 Bustos finished his prison terms in 2016 and began his
probation term. In July 2021, the trial court found that Bustos had violated
his probation. At the disposition hearing, Bustos argued that all his
convictions stemmed from a single act and therefore the ten-year probation
term imposed consecutive to the prison sentence was illegal under A.R.S.
§ 13–116—which required concurrent sentences for multiple punishments
of a single act—and requested that probation be terminated. The trial court
rejected Bustos’s argument, revoked his probation for the burglary
conviction and imposed a 430-day prison term with 415-days’ time served,
and reinstated a five-years term of intensive probation for the stalking
conviction. Bustos timely appealed.
DISCUSSION
¶4 Bustos argues that the trial court erred in attaching a ten-year
probationary term for his stalking conviction to his five-year prison term
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STATE v. BUSTOS
Decision of the Court
for the other counts.1 He claims that the stalking conviction was within the
same constellation of facts thereby constituting a single act from which a
consecutive sentence is barred under A.R.S § 13–116. Before review of
Bustos’s claim, however, this court must consider whether A.R.S. § 13–4033
permits an appeal of these claims.
¶5 Under A.R.S. § 13–4033, a defendant may appeal (1) a final
judgment of conviction or verdict; (2) an order denying a motion for a new
trial; (3) an order made after judgment affecting the substantial rights of the
party; or (4) a sentence because it is illegal or excessive. Section 13–4033,
however, does not permit a defendant to bring issues in a subsequent
appeal “that were either raised or could have been raised” in a previous
appeal. State v. Pierson, 107 Ariz. 386, 387 (1971) (interpreting A.R.S.
§ 13–4033’s predecessor statute). Such appeals must be dismissed as
unauthorized under the statute. Id.
¶6 Bustos makes one argument in this appeal: The trial court
erred in imposing the ten-year probation term for his stalking conviction in
2013. Bustos could have raised this issue in his first appeal; therefore, Bustos
has procedurally defaulted and waived review of the issue. See Pierson, 107
Ariz. at 387; State v. Shrum, 220 Ariz. 115, 118 ¶ 12 (2009) (post-conviction
relief precluded when the ground alleged either was or could have been
raised on direct appeal or in a previous proceeding). Bustos argues,
however, that State v. Regenold permits the appeal. 226 Ariz. 378 (2011). But
Regenold merely found that a defendant who pled guilty but later contested
an alleged probation violation may appeal the resulting sentence, 226 Ariz.
at 331 ¶ 1, and is factually inapposite. Here, Bustos was convicted, appealed
his conviction, and had the conviction and sentence affirmed. While Bustos
properly appealed under A.R.S. § 13–4033, he has waived the issue in this
appeal because he could have raised the issue in his earlier appeal but did
not. See Pierson, 107 Ariz. at 387; Shrum, 220 Ariz. at 118 ¶ 12.
1 At the revocation disposition, Bustos argued that the ten-year
probation term imposed on the burglary count was also unlawful and
excessive. The trial court terminated his probation on that count, however,
and Bustos therefore does not argue its legality in this appeal.
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STATE v. BUSTOS
Decision of the Court
CONCLUSION
¶7 For the foregoing reason, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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