State v. Thompson, 1
| Decision Date | 20 July 1978 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 120 Ariz. 202,584 P.2d 1193 |
| Parties | STATE of Arizona, Respondent, v. Kenneth THOMPSON, Petitioner. 3290-PR. |
| Court | Arizona Court of Appeals |
Petitioner Thompson seeks review of the action of the trial court in denying his petition for post-conviction relief pursuant to Rule 32, 17 A.R.S., Rules of Criminal Procedure.
Petitioner was convicted of two counts of selling heroin, in violation of A.R.S. § 36-1002.02, and sentenced to concurrent terms of 10 to 30 years on each count. He appealed, and the convictions and sentences were affirmed by this court in its memorandum decision in State v. Thompson, 1 CA-CR 1263, filed July 20, 1976. None of the issues raised in his present petition were raised in his appeal, although they could have been.
In his Rule 32 petition, petitioner has raised a number of questions, all of which have finally been conceded by him to be without merit except for those discussed below. The County Attorney, however, filed no written response to the petition and no written response to the motion for rehearing, and thus furnished no help whatsoever to the trial court or this court in its effort to arrive at a proper decision. Judicial proceedings in this state still depend on the adversary system to achieve prompt and correct results, and the complete failure of the State's representative (County Attorney) to file any responsive pleadings in Rule 32 proceedings is a neglect of duty and a disservice to this court. In this case in particular, it appears that the defense of preclusion under Rule 32.2(a) could have been raised in opposition to the relief sought in the petition. However, as that defense must be pleaded and proved by the State, Rule 32.2(d), this court is not at liberty to base its decision on preclusion where it has not been pleaded. As a result of the State's failure to respond or plead properly, not only in this case but in others which have come before this court, the number of cases to be reviewed and the number of times each case has to be considered has been increasing, resulting in a multiplicity of litigation which is not warranted by the requirements of justice. We therefore strongly suggest that the State's representatives give more attention to the performance of their duties in post-conviction relief proceedings in the future.
We proceed now to consider the grounds for relief alleged in the petition which have not been waived by petitioner. First of all, petitioner claims that a previous conviction which was set forth in an addendum to the information, alleging that he was previously convicted of manslaughter, a felony, on January 19, 1966 in Cause No. 46358 in Maricopa County, Arizona, was improperly used as a prior conviction to enhance punishment because the record did not indicate the date or county of conviction. How petitioner's counsel can make such a statement in her motion for rehearing when the addendum itself, which is part of the record, clearly alleges the date and county of conviction completely escapes us. This ground is absolutely contradicted by the written record and is without merit.
Next petitioner contends that his prior conviction for manslaughter should not have been used to enhance the punishment imposed for his current convictions of selling heroin. He points to the language of § 36-1002.02(B) 1 which provides, with respect to punishment for more than one offense, that a higher sentence is required only if the defendant ". . . has been previously convicted once of any felony offense Described in this article . . . ." (emphasis added). Petitioner says that manslaughter is obviously not an offense described in the article involved. He then argues that since this specific provision exists in the narcotics laws, the general recidivist statute (A.R.S. § 13-1649)...
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Witzig v. Shinn
...court is not at liberty to base its decision on preclusion where it has not been pleaded.” Thompson, 120 Ariz. at 203, 584 P.2d at 1194. But Thompson has not good law since at least the 2000 Amendments to Rule 32.2, which currently provide: “At any time, a court may determine by a preponder......
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State v. Sasak
...proceedings can defendant now raise the issue of breach of the plea agreement. Ariz.R.Crim.P. 32.2; State v. Thompson, 120 Ariz. 202, 203, 584 P.2d 1193, 1194 (App.1978). We begin with the proposition that when the trial court holds an evidentiary hearing, our review of the trial court's fi......
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State v. Weeks
...the state failed to plead preclusion, "this court [wa]s not at liberty to base its decision on preclusion." State v. Thompson, 120 Ariz. 202, 203, 584 P.2d 1193, 1194 (App. 1978). But the current rule allows "any court on review of the record [to] determine and hold that an issue is preclud......
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State v. Scrivner, 1
...response to the petitions, pleaded that petitioner was precluded from raising the issues asserted. See Rule 32.2.d; State v. Thompson, 120 Ariz. 202, 584 P.2d 1193 (App.1978); State v. Rockerfeller, 117 Ariz. 151, 571 P.2d 297 (App.1977). The trial court then summarily denied the petitions.......