Marks v. Hon. Kaiser ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
CHESTER LEE MARKS, Petitioner/Appellant
v.
COMMISSIONER BRIAN KAISER, Respondent/Appellee.
No. 1 CA-CV 14-0308
FILED 12-09-2014
Appeal from the Superior Court in Maricopa County
No. LC2014-000140
The Honorable Crane McClennen, Judge
DISMISSED
COUNSEL
Chester Lee Marks, Phoenix
Petitioner/Appellant
Arizona Attorney General’s Office, Phoenix
By Rex Nowlan
Counsel for Respondent/Appellee
DECISION ORDER
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined.
MARKS v. HON. KAISER
Decision of the Court
B R O W N, Judge:
¶1 Chester Lee Marks appeals from the superior court’s order
dismissing his “complaint for special action.” Because the relief he seeks,
however, pertains to an order entered in a different case, we lack
jurisdiction to review his appellate arguments.
¶2 According to Marks’ representations on appeal, he was
convicted of two counts of armed robbery (CR 83659 and CR 83614) and
one count of robbery (CR 83091) in 1975. In 2008, he was convicted of one
count of theft (CR 2007-156228-001 DT). In June 2011, in cause number CR
2007-156228-001, Marks filed applications to set aside the four convictions
and have his civil rights restored. In August 2011, the superior court denied
the applications, stating: “This court will not consider your application until
fees of $190.62 have been paid. You may resubmit your application once
all fees have been paid.” On January 8, 2014, Marks requested
reconsideration of the court’s ruling. On February 20, 2014, the superior
court granted Marks’ request for reconsideration, but denied the
applications to set aside the convictions due to the “nature and number of
felony convictions.” Marks did not file a notice of appeal from that order.
¶3 Filing under a separate cause number (LC 2014-000140-001),
on March 13, 2014, Marks filed a special action challenging the denial of his
applications, which the superior court denied, explaining that “[a]ny
request for the review of the actions of a Maricopa County Superior Court
Judicial Officer must be filed with the Arizona Court of Appeals.” Marks
then filed a notice of appeal.
¶4 This court has an independent duty to determine whether it
has jurisdiction to consider an appeal. Sorensen v. Farmers Ins. Co. of Ariz.,
191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App. 1997). Marks does not
challenge the propriety of the superior court’s order denying his request for
special action relief. Stated differently, Marks does not contend that the
superior court erroneously denied his special action complaint. Instead, he
challenges the superior court’s denial of his applications to set aside his
felony convictions in CR 2007-156228-001. Had Marks timely appealed
from the February 20, 2014 signed order denying his applications, we
would be able to review the appropriate superior court record to determine
whether an abuse of discretion occurred. Instead of filing a notice of appeal
in CR 2007-156228-001, Marks filed a special action complaint under a
different cause number in the superior court.
2
MARKS v. HON. KAISER
Decision of the Court
¶5 Accordingly, we lack jurisdiction to review the superior
court’s denial of Marks’ applications to set aside his felony convictions and
therefore dismiss his appeal.
:gsh
3