State v. Wicker

NOTICE: NOT FOR PUBLICATION.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
STATE OF ARIZONA, Respondent,
v.
GEORGE MILTON WICKER, Petitioner.
No. 1 CA-CR 12-0610 PRPC
FILED 3-18-2014
Petition for Review from the Superior Court in Maricopa County
No. CR0000-136401
The Honorable Robert L. Gottsfield, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph Maziarz
Counsel for Respondent
George Wicker, Florence
Petitioner
STATE v. WICKER
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould, Judge Peter B. Swann and Judge Jon
W. Thompson delivered the following decision of the Court.
PER CURIAM:
¶1 In 1984, petitioner George Milton Wicker pled no contest to
five counts of kidnapping and four counts of sexual assault. The trial
court sentenced him to an aggregate term of 105 years’ imprisonment and
this court affirmed his convictions and sentences on direct appeal. Wicker
now seeks review of the summary dismissal of his third successive
petition for post-conviction relief. We have jurisdiction under Arizona
Rule of Criminal Procedure 32.9(c).
¶2 Wicker argues that the Sexually Violent Persons Act (“SVP
Act”), now codified at A.R.S. §§ 36-3701 to –3717, constitutes a significant
change in the law that is retroactive and entitles him to be resentenced to a
shorter term of imprisonment. The SVP Act became effective in 1996.
1995 Ariz. Sess. Laws, ch. 257, § 11(B) (1st Reg. Sess.). Wicker committed
the offenses in 1983 and his convictions became final in 1987.
¶3 We grant review and deny relief. The civil commitment
provisions of the SVP Act could apply to Wicker if he lives long enough to
complete his sentences. See Martin v. Reinstein, 195 Ariz. 293, 308, ¶ 44,
987 P.2d 779, 794 (App. 1999) (holding that ex post facto prohibitions do
not apply to the civil commitment provisions of the SVP Act). There is,
however, nothing in the SVP Act that requires the trial court to resentence
Wicker to shorter terms of imprisonment simply to increase the likelihood
that he might live long enough to be subject to the Act, and Wicker offers
no authority to the contrary. Further, this issue is precluded because
Wicker could have raised it in a prior, timely post-conviction relief
proceeding after the SVP Act became effective in 1996. This is Wicker’s
second post-conviction relief action since 1996. Any claim that a
defendant could have raised in an earlier post-conviction relief proceeding
is precluded. Ariz. R. Crim. P. 32.2(a). None of the exceptions under Rule
32.2(b) apply.
2
STATE v. WICKER
Decision of the Court
¶4 For the foregoing reasons, we deny relief.
:mjt
3