State v. Rockerfeller

• Citation: 571 P.2d 297,117 Ariz. 151
• Decision Date: 03 November 1977
• Docket Number: No. 1,CA-CR,1
• Parties: STATE of Arizona, Respondent, v. Wilbur ROCKERFELLER, Petitioner. 2358-PR.
• Court: Court of Appeals of Arizona

Page 297

571 P.2d 297

117 Ariz. 151

STATE of Arizona, Respondent, v. Wilbur ROCKERFELLER, Petitioner.

No. 1 CA-CR 2358-PR.

Court of Appeals of Arizona, Division 1, Department B.

Nov. 3, 1977.

Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III, Chief Counsel, Crim. Div., Asst. Atty. Gen., Phoenix, for respondent.

Ross P. Lee, Maricopa County Public Defender by Anne W. Kappes, Deputy Public Defender, Phoenix, for petitioner.

OPINION

JACOBSON, Judge.

The sole issue for consideration by the court on this petition for review of a denial of petitioner's motion for post-conviction relief under Rule 32, Rules of Criminal Procedure, is the effect of three invalid prior felony convictions on the petitioner's present sentence.

Petitioner, Wilbur Rockerfeller, was originally convicted in this matter in 1973 of first degree burglary following a negotiated plea of guilty. The presentence report prepared at that time indicated that petitioner had four prior felony convictions for burglary, three arising out of Yuma County and one arising out of Maricopa County. At the time of sentencing, one of the Yuma felony convictions had been set aside by the Arizona Federal District Court on the grounds that the Superior Court of the State of Arizona, in and for the County of Yuma, had no jurisdiction over the offense committed by the petitioner because he was a Mohave Indian and the offense committed occurred on an Indian Reservation (Parker, Arizona). ¹ The fact of the invalidation of one of the Yuma convictions was not brought to the attention of the trial court. The petitioner was nevertheless placed on probation for five years. No appeal was taken from that proceeding.

On November 27, 1973, a petition to revoke probation was filed and following a hearing on this petition, petitioner was found to have violated the terms of his probation. The trial court continued the petitioner on probation, but added to the condition of probation that petitioner serve four months in the county jail.

In May, 1974 a second petition to revoke probation was filed. As a result, petitioner's probation was revoked and he was sentenced to not less than ten nor more than twelve years in the Arizona State Prison. Petitioner appealed this revocation and sentence and this court affirmed by memorandum decision. State v. Rockerfeller, 1 CA-CR 807 (Memorandum Decision filed March 25, 1975.) One of the grounds urged by petitioner in that appeal was ineffectiveness of counsel based on counsel's failure to bring to the attention of the trial court at time of sentencing on revocation of probation that one of the Yuma felony convictions had been set aside by the federal court. This court disposed of that issue as follows:

"We have reviewed the defendant's records and without stating particulars, we may say that it is lengthy. Defendant's prior convictions were not alleged by the prosecution but were contained in the presentence report. They were not used as a means of sentencing defendant under A.R.S. § 13-1649, which provides for increased punishment on subsequent convictions. The weight to be given the contents of the report was to be determined by the trial judge. The record before us discloses that repeated attempts to rehabilitate the defendant have failed and under the circumstances of this case, the severity of the sentence would not, we feel, be affected by the removal of one conviction." (emphasis added)

On March 21, 1975, petitioner filed his first petition for post conviction relief which he supplemented on April 15, 1975, and again on July 7, 1975. The July 7, 1975 supplement alleged that in addition to the federal court order setting aside one of the Yuma felony convictions, the Superior Court of Yuma County set aside the other two Yuma convictions on June 26, 1975, on the same grounds utilized by the federal court and thus under the authority of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.E.2d 592 (1972) he was entitled to have his sentence reconsidered. This petition for post conviction relief together with the supplements was summarily denied by the trial court on July 17, 1975. No motion for rehearing was made or petition for review taken from this denial. Petitioner had appointed counsel during this entire post conviction relief process.

On August 20, 1975, petitioner filed his second petition for post conviction relief, the summary denial of which is the subject of this petition for review. The grounds alleged in this second petition are exactly the same as were alleged in his July 7, 1975, second supplement to his first petition, that is, that at the time of sentencing on the petition to revoke, the trial court improperly considered three prior felony convictions that had been vacated, and thus petitioner was entitled to reconsideration of sentence under U. S. v. Tucker, supra.

Obviously, this second petition would have been precluded under Rule 32.2, Rules of Criminal Procedure, which provides in part:

"A petitioner will not be given relief under this rule based upon any ground:

"(2) Finally adjudicated . . . in any previous collateral proceeding;"

Alas,...