State v. Leeman

• Decision Date: 19 November 2020
• Docket Number: No. 2 CA-CR 2020-0144-PR,2 CA-CR 2020-0144-PR
• Parties: The STATE of Arizona, Respondent, v. Angela Rene LEEMAN, Petitioner.
• Court: Arizona Court of Appeals

250 Ariz. 251

478 P.3d 246

The STATE of Arizona, Respondent,

v.Angela Rene LEEMAN, Petitioner.

No. 2 CA-CR 2020-0144-PR

Court of Appeals of Arizona, Division 2.

Filed November 19, 2020

Joel Feinman, Pima County Public Defender, By David J. Euchner, Assistant Public Defender, Tucson and Kevin M. Burke, Pima County Legal Advocate, By A. Kate Bouche Verenna, Assistant Legal Advocate, Tucson Counsel for Petitioner

Presiding Judge Staring authored the opinion of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.

STARING, Presiding Judge:

¶1 Petitioner Angela Leeman seeks review of the trial court's order summarily dismissing her successive petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P.¹ We review a court's denial of post-conviction relief for an abuse of discretion. State v. Roseberry , 237 Ariz. 507, ¶ 7, 353 P.3d 847 (2015). Leeman has not shown any such abuse here.

¶2 Following a jury trial, Leeman was convicted of thirteen counts of child abuse and one count each of methamphetamine possession and possession of drug paraphernalia. The trial court sentenced her to concurrent and consecutive prison terms totaling sixty-one years. We affirmed Leeman's convictions on appeal, but ordered she be resentenced on certain counts. State v. Leeman , No. 2 CA-CR 94-0364 (Ariz. App. Mar. 14, 1996) (mem. decision). Leeman has since sought and been denied post-conviction relief multiple times, and this court has granted review but denied relief on her petitions for review in three of those instances. See State v. Leeman , No. 2 CA-CR 97-0286-PR (Ariz. App. May 21, 1998) (mem. decision); State v. Leeman , No. 2 CA-CR 2017-0419-PR, 2018 WL 1225122 (Ariz. App. Mar. 9, 2018) (mem. decision); State v. Leeman , No. 2 CA-CR 2019-0197-PR, 2020 WL 709611 (Ariz. App. Feb. 12, 2020) (mem. decision).

¶3 In 2020, Leeman again sought post-conviction relief in what is apparently her sixth such proceeding, arguing pursuant to Rule 32.1(c) that her sentences were not authorized by law, her convictions and sentences violated the prohibition against double jeopardy, and the sentencing court had "misapplied" the law related to " Hannah priors."² She contended her claims were not precluded under newly amended Rule 32.2(b), as long as she provided "a reason" for her otherwise untimely filing, to wit, "her previous lawyers failed to identify and raise the issues."³ Leeman also maintained she was entitled to an evidentiary hearing.

¶4 The trial court ordered the parties to file supplemental briefs, directing the state to address whether the court had "erred by considering the convictions of Count 1 and 3 as two prior felony convictions for the purposes of calculating the sentencing range for Count 5 and by considering Count 1 as a prior predicate felony conviction for the purposes of calculating the sentencing range for Count 8." The court also ordered Leeman to explain:

[H]ow the Rule 32.2(b) requirement that she show "sufficient reasons" for not raising the priors/sentencing range calculation issue referenced above has been met, given the fact that it was raised at the time of trial by counsel and, as a consequence, was patently apparent to Rule 32 counsel and appellate counsel for more than two decades and could have been addressed if it had merit. Defendant shall also address whether the new Rule 32.2(b) can be properly interpreted to allow ineffective assistance of counsel claims to avoid preclusion and, if so, cite any support for said interpretation.

¶5 After considering the initial and supplemental briefing, the trial court summarily dismissed Leeman's petition, finding she had not provided "sufficient reasons," as required by Rule 32.2(b), explaining why her otherwise untimely claims should not be subject to summary dismissal under Rule 32.2(b). The court further concluded that "[e]ven if defendant were able to present sufficient reason(s) to justify her untimely filing, she is not entitled to relief."⁴ This petition for review followed.

¶6 On review, Leeman argues the trial court abused its discretion for the following reasons: it improperly dismissed her claim that her sentences were not authorized by law because they violated double jeopardy; it committed "legal error by interpreting the phrase ‘sufficient reasons’ in Ariz. R. Crim. P. 32.2(b) inconsistently with the plain language and the drafters’ intent"; and, it improperly resolved factual disputes without conducting an evidentiary hearing. She specifically argues the court's ruling is contrary to the intent of the Rule 32 Task Force, to wit, to create a rule change to address the fact that society is not served by automatically precluding defendants from raising illegal sentencing claims. Leeman also maintains the court misinterpreted the "sufficient reasons" language in Rule 32.2(b) and instead applied a "good cause" standard, and contends the court's ruling "effectively prevents any untimely claims of illegal sentence to be raised."

¶7 Relying on the plain language of amended Rule 32.2(b), see Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, ¶ 8, 152 P.3d 490 (2007), the trial court rejected Leeman's suggestion that she need only provide a reason for her untimely filing, noting "[w]hat is conspicuously absent in [Leeman's] claim is the word ‘sufficient,’ a word which is conspicuously present in the rule." Indeed, on review, Leeman contends that although the task force added the word "sufficient" to Rule 32.2(b), the rule nonetheless permits a defendant like her to file a successive petition as long as she provides "a reason" for doing so.

¶8 Citing various comments, reports and minutes from the task force, the trial court noted that the committee recognized that "the interests of victims and finality of judgments were not furthered by holding a defendant beyond an authorized sentence date," nor was any "societal interest ... advanced" by doing so. However, the court added, "it is also clear" the task force "did not intend the preclusion exception to swallow the overall rule that claims for relief made pursuant to Rule 32.1(c) must be timely," and noted that a judge/member of the task force had stated that a defendant should have " ‘a legitimate reason for not raising [such claims] previously’ " in order to avoid preclusion. (Emphasis omitted.) The court further pointed out that the Arizona Prosecuting Attorneys Advisory Council (APAAC) had proposed that Rule 32.2(b) require a defendant to show "good cause" why a claim was not raised in a prior proceeding or in a timely manner. The court also recognized, however, that after discussing APAAC's proposal, the task force concluded that while the defendant provides the reason for not raising the claim in a prior proceeding or in a timely manner, "whether the reason is a good one is what the court decides." The court expressly noted that the task force had then added language requiring a defendant to provide "sufficient" reasons why the claim was not raised in a prior proceeding or in a timely manner. See Rule 32.2(b).

¶9 The trial court thus concluded:

The plain language of Rule 32.1(c) and the above comments, reports and minutes generated by the committee that was responsible for the revisions to Rule 32 and 33 of the Arizona Rules of Criminal Procedure that became effective on January 1, 2020 rebut defendant's claim that she need only provide "a reason for the untimeliness" in order for the Court to consider her petition. Instead, defendant must present a sufficient reason or reasons to avoid preclusion. It is with this standard that the Court considers defendant's argument that she should not be precluded from asserting her otherwise untimely multiplicity argument.

¶10 Notably, as the trial court correctly stated, Leeman's trial attorney raised multiplicity arguments at trial and challenged the necessity of consecutive sentences at sentencing. In her petition below and on review, Leeman characterizes counsel's arguments as a "quick reference ... to a multiplicity issue," a characterization the court correctly found inaccurate. During the settling of jury instructions, Leeman's attorney argued extensively that the charges were multiplicitous, and stated, "for the record, let me say this is multiplicity." And, at sentencing, relying on Hannah , counsel challenged the necessity of consecutive sentences.

¶11 The trial court thus concluded appellate and Rule 32 counsel "may very well have considered the arguments now being raised and concluded, based on their review of the record and consideration of the law in effect at the time, that they could not present a good faith multiplicity argument."⁵ The court also noted that on appeal, this court had "addressed numerous sentencing questions, including the specific question about whether Counts 1 and 8 should run consecutively, and [had] ruled in the affirmative."

¶12 Although Leeman's counsel did not challenge the imposition of consecutive sentences on appeal, the state filed a cross appeal arguing that the sentences for nine of the child abuse convictions, rather than only two, should have been consecutive. See Leeman , No. 2 CA-CR 94-0364, at 16–18. And, notably, this court not only rejected Leeman's sentencing arguments on appeal, but we also rejected the state's argument on cross appeal, specifically concluding that "the trial court [had] correctly ordered the sentences for [two of the child abuse] counts to run consecutively ...." Id. at 16–18. Moreover, we noted, "We have searched the record for fundamental error and have found none."⁶ Id. at 19.

¶13 Accordingly, a challenge of the legality of Leeman's consecutive sentences is arguably precluded because it was actually adjudicated on appeal. See Ariz. R. Crim. P. 32.2(a)(2), (b) (claims for relief based on Rule 32.1(b) through (h) subject to preclusion if finally adjudicated on merits on appeal or in previous post-conviction proceeding). Although Leeman did not raise on...