State v. Hazzard
1 CA-CR 15-0746-PRPC
| Ariz. Ct. App. | May 23, 2017Background
- In 2000 Hazzard pled guilty to two counts: sexual conduct with a minor (Class 2) and attempted sexual conduct with a minor (Class 3); received 27 years for Count 1 and lifetime probation for Count 2.
- He filed a timely Rule 32 post-conviction notice; appointed counsel found no claims, court gave time for a pro se petition, and dismissed after he did not file.
- In 2010 Hazzard filed a combined notice/petition raising ineffective-assistance and sentencing/probation challenges; the superior court dismissed and this Court denied review.
- In July 2015 Hazzard filed another successive Rule 32 petition repeating prior claims and adding arguments about unlawfulness and constitutionality of his sentence and consecutive probation; the superior court summarily dismissed as successive and untimely (precluded).
- Hazzard argued his sentence was fundamentally illegal and that Rules 32.1(e) and (g) allowed untimely claims; he relied on Smith and Rosales and claimed leniency as a lay litigant.
- The Court granted review but denied relief, affirming preclusion, rejecting the jurisdiction/fundamental-error argument, and adopting the superior court’s reasoning that the sentence and probation were lawful.
Issues
| Issue | Hazzard’s Argument | State’s Argument | Held |
|---|---|---|---|
| Preclusion of successive/untimely Rule 32(a)/(c) claims | Hazzard: sentencing claims can be raised despite delay; newly discovered facts or changes in law excuse untimeliness | State: claims are precluded because they were or could have been raised earlier | Court: claims precluded; Hazzard had opportunity to file pro se earlier and failed |
| Characterizing sentence error as fundamental or jurisdictional defect | Hazzard: illegal sentence deprived court of jurisdiction; fundamental error warrants relief | State: illegal sentence is not lack of subject-matter jurisdiction; no fundamental-error review in Rule 32 | Court: rejected Hazzard; illegal sentence ≠ jurisdictional fundamental error |
| Applicability of Smith and Rosales to avoid preclusion | Hazzard: Smith and Rosales permit overcoming preclusion for certain claims; he relied on those cases | State: those cases are distinguishable and do not support excusing Hazzard’s omissions | Court: Smith addresses ineffective-assistance claims requiring personal waiver and does not hold sentencing error requires personal waiver; Rosales is distinguishable on procedural facts |
| Merits of alleged unlawful sentence / ineffective assistance | Hazzard: sentence and lifetime probation unlawful; counsel ineffective for not raising this | State: sentence and probation lawful; counsel not ineffective for failing to raise nonmeritorious arguments | Court: adopted superior court’s reasoning that sentence and probation were lawful; counsel not ineffective |
Key Cases Cited
- State v. Smith, 202 Ariz. 446 (Arizona 2002) (preclusion analysis for successive Rule 32 ineffective-assistance claims depends on whether right requires personal waiver)
- State v. Rosales, 205 Ariz. 86 (App. 2003) (permitting post-conviction relief where petitioner’s notice was first opportunity to raise appellate counsel claim)
- State v. Bennett, 213 Ariz. 562 (2006) (claims that were or could have been raised earlier are precluded)
- State v. Peek, 219 Ariz. 182 (2008) (Rule 32 preclusion applies to challenges to sentence lawfulness)
- State v. Bryant, 219 Ariz. 514 (App. 2008) (illegal sentence is not a subject-matter jurisdiction error)