State v. Bortz
| Decision Date | 27 June 1991 |
| Docket Number | CA-CR,Nos. 1,s. 1 |
| Citation | 169 Ariz. 575,821 P.2d 236 |
| Parties | STATE of Arizona, Respondent, v. Carl BORTZ, Jr., Petitioner. 89-1305-PR, 1 89-1555-PR. |
| Court | Arizona Court of Appeals |
The significant issue in this case is whether Rule 32.9(a), Arizona Rules of Criminal Procedure, requires a second motion for rehearing when the trial court grants a prior motion for rehearing on a petition for post-conviction relief, grants an evidentiary hearing as a result of the first motion for rehearing, but then dismisses the petition on grounds other than those raised in the original motion for rehearing.
In April 1984 petitioner was charged by indictment with four dangerous felonies: aggravated assault, kidnapping, sexual assault, and burglary. In exchange for the state's promise to dismiss the allegations of dangerousness and three of the felonies, petitioner agreed to plead guilty to sexual assault, in violation of former A.R.S. § 13-1406. The trial court accepted petitioner's plea, 1 and sentenced petitioner to an aggravated term of fourteen years imprisonment.
Petitioner's counsel filed an Anders 2 appeal and, although he was allowed to do so, petitioner did not file a supplemental brief. Petitioner's conviction and sentence were affirmed in State v. Bortz, 1 CA-CR 8314 (Mem.Dec.) (Ariz.App. Apr. 30, 1985). In March 1986 petitioner filed a petition for post-conviction relief. Petitioner alleged that his attorney had been ineffective at the sentencing stage because he had not requested a mitigation hearing. He also alleged that he did not have a prior record, and that several witnesses were willing to testify to his good character. The state argued that petitioner failed to state a colorable claim and that relief was not warranted.
After consideration of the matter, the trial court summarily dismissed the petition:
IT IS ORDERED that the Petition be dismissed.
The Court notes that there were no affidavits of fact set forth in support of the Petition for Post-Conviction Relief. The Court assumes that Counsel for the Petitioner in making the statements that the Defendant's character and conduct were exemplary was relying on the information set forth in the Pre-Sentence Investigation Report filed September 12, 1984. The Court had already considered that information in imposing the sentence in this matter.
Petitioner did not file a motion for rehearing or a petition for review.
From the procedural history that follows, it is apparent that petitioner attempted to avoid the consequences of his failure to include other claims in the petition for post-conviction relief and his failure to pursue further relief after the trial court's dismissal of the petition. Nevertheless, in June 1989, more than three years after the dismissal, petitioner filed another petition for post-conviction relief. Accompanying this petition was a "motion for leave to file delayed motion for rehearing," and a motion for rehearing from the trial court's order dismissing his first petition. The motion contained no explanation as to why a motion for rehearing had not been filed except to state that "the original PCR filed in 1986 was done haphazardly and without even minimal competence [of] counsel." The motion for rehearing simply incorporated the grounds set forth in the accompanying "amended" petition for post-conviction relief. The "amended" petition for post-conviction relief alleged that petitioner's former counsel was ineffective. Present counsel alleged that trial counsel misled petitioner as to parole eligibility and that, if counsel had correctly advised petitioner of the special conditions applicable to any sentence imposed pursuant to A.R.S. § 13-1406, 3 petitioner would not have entered the plea. He also claimed that petitioner had taken medication that may have "affected defendant's cognitive powers and abilities." Petitioner attached affidavits and exhibits to support his claim.
The state's response to the motion for delayed motion for rehearing was that petitioner failed to set forth any valid excuse for the failure to timely file a motion for rehearing. As to the motion for rehearing itself, which simply incorporated the "amended" petition for post-conviction relief by reference, the state argued waiver and preclusion. On the merits, the state conceded that trial counsel had given petitioner erroneous advice about the special conditions regarding the sentence. However, the state pointed out that the trial court had correctly advised petitioner of these special conditions at the change of plea hearing. Furthermore, the state contended, the Department of Corrections had given petitioner written notice on November 26, 1984, that his sentence was a "flat time" sentence. Notwithstanding this notice, petitioner did not raise this issue either on direct appeal or in his first petition. Finally, the state argued, even if petitioner had been given incorrect advice, that advice did not affect his decision to enter the plea, urging that its case was very strong and that petitioner was facing "hard time" of at least fifty years imprisonment if convicted on all counts by a jury.
After consideration of these arguments, the trial court denied the motion for delayed motion for rehearing. Petitioner then filed a petition for review to this court, which became our Cause No. 1 CA-CR 89-1305-PR. The trial court also dismissed the second or "amended" petition for post-conviction relief on the basis of preclusion. Counsel timely filed a motion for rehearing of this order and argued that preclusion did not apply because the failure to raise the issue in the first petition was due to former counsel's ineffectiveness, urging that the court should address the merits of the petition. The trial court granted this motion for rehearing and ordered an evidentiary hearing.
At the evidentiary hearing, petitioner, his trial counsel, and his counsel on the first petition for post-conviction relief all testified. After consideration of the evidence and arguments, the trial court dismissed the petition. Counsel did not file another motion for rehearing of this second dismissal, but did file a petition for review, which became our Cause No. 1 CA-CR 89-1555-PR. This court consolidated the two matters for disposition.
Cause No. 1 CA-CR 89-1305-PR: Motion to File a Delayed Motion for Rehearing
We find no abuse of discretion in the trial court's denial of the motion for leave to file a delayed motion for rehearing.
Rule 32.9(a) provides:
Any party aggrieved by a final decision of the trial court in these proceedings may, within 10 days after the ruling of the court, move the court for a rehearing setting forth in detail the grounds wherein it is believed the court erred. There shall be a response filed within 10 days and a reply within 10 days.
Our supreme court has held that the time limits of Rule 32.9(a) are not jurisdictional and that, if a valid reason for non-compliance exists, the trial court may allow a late filing of the papers. State v. Pope, 130 Ariz. 253, 255, 635 P.2d 846, 848 (1981). The Pope court cautioned, however, that "the party asserting a valid reason for non-compliance with the time requirements has a heavy burden in showing the court why the non-compliance should be excused." Id. at 256, 635 P.2d at 849.
In this matter, petitioner did not meet his burden. Petitioner failed to allege or set forth any evidence that noncompliance with the applicable rule was excusable. Moreover, we note that the tendered motion for rehearing was itself inadequate under the rule. The motion simply incorporated the "amended" or second petition for post-conviction relief by reference, which is inappropriate. State v. Moore, 125 Ariz. 528, 529, 611 P.2d 115, 116 (App.1980). Furthermore, this "amended" petition for post-conviction relief stated, as a basis for the motion for rehearing, new matters not raised in the first petition. The law is clear that a court will not entertain new matters raised for the first time in a motion for rehearing. State v. Ramirez, 126 Ariz. 464, 616 P.2d 924 (App.1980). For these reasons, as to 1 CA-CR 89-1305-PR, we grant review, but deny relief.
Cause No. 1 CA-CR 89-1555-PR: Dismissal Following the Evidentiary Hearing
Following the evidentiary hearing on the claims raised in petitioner's "amended" or second petition for post-conviction relief, the trial court denied the petition. Petitioner then filed a petition for review. No new motion for rehearing was filed. Generally, filing of a motion for rehearing is essential for further appellate review. State v. Gause, 112 Ariz....
To continue reading
Request your trial
-
Cook v. Ryan
...detailed motion for rehearing waived further review.4See State v. Gause, 112 Ariz. 296, 541 P.2d 396, 397 (1975); State v. Bortz, 169 Ariz. 575, 821 P.2d 236, 239 (App.1991). On appeal in 2008, we affirmed the district court's rulings. As relevant here, we concluded that “the state trial co......
-
Alavez v. Shinn
... ... Petition Under 28 U.S.C. § 2254 for a Writ of Habeas ... Corpus by a Person in State Custody (Non-Death Penalty) ... (“Petition”) (Doc. 1). Respondents have filed a ... Limited Answer to Petition for Writ of Habeas ... , Exh. “R” at 66 ... (citing State v. Ramirez , 126 Ariz. 464, 467-68 (Ct ... App. 1980); then citing State v. Bortz , 169 Ariz ... 575, 577 (Ct. App. 1991)). The appellate court declined to ... address Petitioner's argument to the extent it relied on ... ...
-
Hopson v. Ryan
...any issue or argument. A petitioner must set forth each claim with record references and argument. See Rule 32.9(c)(1); State v. Bortz, 169 Ariz. 575, 577 (App. 1991). Simply incorporating an earlier pleading by reference is inappropriate. State v. Moore, 125 Ariz. 528, 529 (App. 1980). Thu......
-
State v. Andersen
...for post-conviction relief and preserved in the motion for rehearing are subject to appellate review. E.g., State v. Bortz, 169 Ariz. 575, 578, 821 P.2d 236, 239 (App.1991). 3 Summary dismissal is proper if the trial court determines that no "material issue of fact or law exists which would......