State v. Bivens ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
RICHARD LEE BIVENS, Petitioner.
No. 1 CA-CR 16-0578 PRPC
FILED 9-7-17
Petition for Review from the Superior Court in Yavapai County
No. V1300CR820060419
The Honorable Joseph C. Butner, III, Judge (Retired)
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Yavapai County Attorney’s Office, Prescott
By Robert J. Johnson
Counsel for Respondent
Richard Lee Bivens, Florence
Petitioner
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.
STATE v. BIVENS
Decision of the Court
C R U Z, Judge:
¶1 Richard Lee Bivens petitions this Court for review from the
dismissal of his petition for post-conviction relief, filed pursuant 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 Bivens accepted a plea agreement in which he pled guilty to
two counts of attempted molestation of a child, and one count of sexual
abuse of a child. He was sentenced to an aggravated sentence of fifteen
years, to be followed by lifetime probation. After sentencing, Bivens was
given a Notice of Rights of Review After Conviction, which he signed.
¶3 Over nine years later, Bivens filed a document titled
Permission to File Delayed Untimely Post-Conviction Relief. The request
was not supported by any memorandum of law or evidence. In that
pleading Bivens cited to Rule 32.1(a), (c), (e), and (f) without any factual or
legal basis to support his claims, nor explanation as to why he failed to file
until nine years after his conviction and sentence. The superior court
denied Bivens’ request, stating the request had been filed “years beyond the
time [when] a Post-Conviction Relief Request should be filed.”
¶4 The reviewing court will not reverse a trial court’s summary
dismissal of post-conviction relief proceedings unless it finds an abuse of
discretion. State v. Ward, 211 Ariz. 158, 161, ¶ 7, 118 P.3d 1122, 1125 (App.
2005); State v. Watton, 164 Ariz. 323, 325, 793 P.2d 80, 82 (1990). “A court
abuses its discretion if a decision is manifestly unreasonable or is based on
untenable grounds[,]” Schwartz v. Superior Court, 186 Ariz. 617, 619, 925 P.2d
1068, 1070 (App. 1996), or if the reasons given for its action are legally
incorrect. State ex rel. Thomas v. Newell, 221 Ariz. 112, 114, ¶ 6, 210 P.3d 1283,
1285 (App. 2009).
¶5 In his request to file an untimely petition for post-conviction
relief, Bivens offered nothing that would indicate exactly what claims he
was raising or why he did not file a petition for relief in a timely manner.
He cited to Rule 32(a), (c), (e), and (f), but went no further. In his Petition
for Review, Bivens does set forth his claims regarding the alleged illegality
of his lifetime probation, however, these claims were not included in his
superior court filing. Issues not first presented to the trial court may not be
presented in the petition for review. State v. Bortz, 169 Ariz. 575, 577, 821
P.2d 236, 238 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).
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STATE v. BIVENS
Decision of the Court
¶6 The superior court did not abuse its discretion by summarily
dismissing Bivens’ Permission to File Delayed Untimely Post-Conviction
Relief as untimely. Nine years have passed and Bivens failed to allege any
specific exceptions to Rule 32, which would allow him relief, nor has he
offered any excuse for the delay.
¶7 We grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: JT
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