State v. Johnson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
RODNEY CARL JOHNSON, Petitioner.
No. 1 CA-CR 22-0043 PRPC
FILED 9-13-2022
Petition for Review from the Superior Court in Maricopa County
No. CR2019-001405-001
The Honorable Roy C. Whitehead, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Krista Wood
Counsel for Respondent
Rodney Carl Johnson, Kingman
Petitioner
STATE v. JOHNSON
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Brian Y. Furuya and Judge Jennifer B. Campbell joined.
M c M U R D I E, Judge:
¶1 Rodney Carl Johnson petitions this court to review the
dismissal of his post-conviction relief petition. We have considered the
petition for review and grant review but deny relief.
¶2 Johnson pled guilty to two counts of luring a minor,
stipulating to a 10-year prison sentence followed by lifetime probation.
Johnson filed an untimely notice of post-conviction relief 23 months after
sentencing. Johnson brought claims under Rule 33.1(a) and (b), alleging
prosecutorial misconduct, various Fifth Amendment violations, and no
subject matter jurisdiction because of problems with the grand jury. The
trial court summarily dismissed the petition partly because Johnson filed it
untimely. Johnson petitioned for review.
¶3 On review, Johnson argues that he is entitled to
post-conviction relief because Arizona lacked jurisdiction. Johnson asserts
that he lived in California and never physically entered Arizona. To avoid
preclusion, a pleading defendant seeking post-conviction relief under Rule
33.1(b) “must file the notice for a claim . . . within a reasonable time after
discovering the basis for the claim.” Ariz. R. Crim. P. 33.4(b)(3)(B).
¶4 Johnson states that his notice was timely because he did not
receive discovery from his attorney until two years after sentencing. But
Johnson would have known where he lived without his attorney’s
discovery. Johnson also failed to attach evidence to his petition supporting
his claim of attorney misfeasance. The claim is also waived because Johnson
presents a new argument under Rule 33.1(b) on review. See Ariz. R. Crim.
P. 33.16(c)(2)(B) (petition for review must contain issues decided by the trial
court); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (court of appeals does
not address issues raised for the first time in a petition for review). The trial
court did not abuse its discretion by dismissing Johnson’s claim.
¶5 Johnson also alleges prosecutorial error. We find this
argument untimely and waived for failure to cite to the record or relevant
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STATE v. JOHNSON
Decision of the Court
authority and not developing the argument. See Ariz. R. Crim. P.
33.4(b)(3)(A) (notice under Rule 33.1(a) must be filed within 90 days of
sentencing); Ariz. R. Crim. P. 33.4(b)(3)(D) (defendant must “adequately
explain[] why the failure to timely file a notice was not the defendant’s
fault”); Ariz. R. Crim. P. 33.16(c)(2); State v. Stefanovich, 232 Ariz. 154, 158,
¶ 16 (App. 2013); State v. Krum, 183 Ariz. 288, 295 (1995).
¶6 We grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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