State v. Bivens
1 CA-CR 16-0578-PRPC
| Ariz. Ct. App. | Sep 7, 2017Background
- Petitioner Richard Lee Bivens pleaded guilty to two counts of attempted molestation of a child and one count of sexual abuse of a child and received an aggravated 15-year sentence followed by lifetime probation.
- After sentencing, Bivens signed a Notice of Rights of Review After Conviction.
- Over nine years later Bivens filed a "Permission to File Delayed Untimely Post-Conviction Relief" under Arizona Rule of Criminal Procedure 32, citing subsections (a), (c), (e), and (f).
- The delayed filing contained no supporting memorandum, facts, or explanation for the nine-year delay and did not specify the claims he sought to raise in the trial court.
- The superior court summarily denied the request as untimely, concluding it was filed years beyond the allowable time for a Rule 32 petition.
- On petition for review, Bivens raised claims about the legality of his lifetime probation that were not presented to the trial court; the appellate court declined to consider issues not first raised below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the superior court abused its discretion by summarily dismissing Bivens’ untimely Rule 32 filing | Bivens sought permission to file a delayed Rule 32 petition (cited Rules 32(a),(c),(e),(f)); he argued generally for relief (trial claims about lifetime probation raised later) | Respondent (State) argued the filing was untimely, lacked specificity, offered no reasons for delay, and did not present claims in the trial court | Court held no abuse of discretion: dismissal affirmed because filing was untimely, lacked factual/legal basis, and claims raised on review were not first presented below |
Key Cases Cited
- State v. Ward, 211 Ariz. 158 (App. 2005) (standard for appellate review of summary dismissal of post-conviction relief)
- State v. Watton, 164 Ariz. 323 (1990) (standard for summary dismissal of post-conviction proceedings)
- Schwartz v. Superior Court, 186 Ariz. 617 (App. 1996) (definition of abuse of discretion)
- State ex rel. Thomas v. Newell, 221 Ariz. 112 (App. 2009) (court may be reversed if legal reasons for action are incorrect)
- State v. Bortz, 169 Ariz. 575 (App. 1991) (issues not presented to trial court may not be raised for first time on petition for review)