STATE v. SANDON

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Docket Number

No. CR-86-0116-PR.

Attorney(S)

Robert K. Corbin, Atty. Gen. by Jessica Gifford Funkhouser and Barbara A. Jarrett, Asst. Attys. Gen., Phoenix, for appellee. D. Jesse Smith, Tucson, for appellant Sandon. Mark L. Sandon, Florence, pro se.

Judges

PER CURIAM.

Acts

Judiciary And Judicial Procedure — Habeas Corpus — Particular Proceedings — State Custody; Remedies In Federal Courts

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Smart Summary

Factual and Procedural Background

Mark L. Sandon and several other inmates were convicted after a twelve-week jury trial of conspiracy to commit and/or the actual commission of introducing firearms into the Arizona State Prison at Florence. Appeals were taken to the Arizona Court of Appeals, and petitions for post-conviction relief were filed in the trial court. After denial of relief, petitions for review were consolidated with the direct appeals. The Court of Appeals affirmed the convictions and denied the petitions for review. Sandon's counsel filed a petition for review to the Arizona Supreme Court selecting three issues for consideration, but the petition was denied. Sandon then filed for federal habeas corpus relief under 28 U.S.C. § 2254, which was dismissed without prejudice due to failure to exhaust state remedies on certain issues. This opinion addresses the exhaustion of state remedies issue in the context of Sandon's case.

Legal Issues Presented

Whether Sandon had exhausted his available state court remedies before seeking federal habeas corpus relief.
The scope and finality of direct appeals and post-conviction relief under Arizona law, particularly regarding discretionary review by the Arizona Supreme Court.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Picard v. Connor, 404 U.S. 270 (1971)	Requirement that state remedies be exhausted before federal habeas corpus relief is granted.	Referenced to emphasize the importance of exhausting state remedies prior to federal review.
State v. Sandon, Nos. 2 CA-CR 3076 and 2 CA-CR 3677-2 PR (Ariz.Ct.App. Jan. 15, 1986)	Affirmance of convictions and denial of petitions for review after consolidated appeals and post-conviction relief.	Used to establish the procedural history and finality of the Court of Appeals’ decision.
State v. Shattuck, 140 Ariz. 582, 684 P.2d 154 (1984)	Limits on right to appeal to the Arizona Supreme Court and exhaustion of state remedies.	Clarified that once the direct appeal right is exercised, state remedies are exhausted and discretionary review is not guaranteed.
Anders v. California, 386 U.S. 738 (1967)	Procedures for appointed counsel to withdraw when appeals lack merit.	Referenced in relation to discretionary review and counsel’s role in appellate proceedings.

Court's Reasoning and Analysis

The Court reasoned that under Arizona law, a convicted person has an absolute right to a direct appeal, which was exercised by Sandon. Post-conviction relief under Rule 32 is also available as a separate remedy. The Court of Appeals reviewed and affirmed Sandon's convictions and denied petitions for review, which concluded the available state remedies. The Arizona Supreme Court denied discretionary review of selected issues. The Court emphasized that once the direct appeal right is exercised and discretionary review denied, state remedies are considered exhausted. The Court noted that Sandon's federal habeas petition was dismissed because he had not presented certain issues in state court, reinforcing the exhaustion requirement. The Court further explained that absent proper allegations under Rule 32.1(d), (e), or (g), which were not present here, the issues decided by the Court of Appeals cannot be reopened. Consequently, the petition was dismissed for failure to demonstrate exhaustion of state remedies.

Holding and Implications

The petition is dismissed.

The Court held that Sandon had exhausted his available state remedies by utilizing direct appeal and post-conviction procedures as provided by Arizona law, and that discretionary review by the Arizona Supreme Court is not a right but a privilege. Because Sandon failed to properly raise additional issues under the required post-conviction rules, the state remedies were deemed exhausted, barring further state review. The direct effect is the dismissal of the petition, with no new precedent established beyond reaffirming the exhaustion doctrine and procedural finality in Arizona criminal appeals and post-conviction relief.

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STATE of Arizona, Appellee, v. Mark L. SANDON, Russell Young, Danny Lynn Hudson, and Gerald Title Jones, Appellants.

PER CURIAM.

We would ordinarily dispose of this matter by order. But, because the Court continues to receive large numbers of prisoner petitions seeking to exhaust state remedies, see, e.g., Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), we briefly address that issue based upon the procedural history of the case of State of Arizona v. Mark L. Sandon, Pima County No. CR-06801 SGJ.

Sandon and several other prison inmates, after a twelve-week jury trial, were convicted of either conspiracy to commit, or the actual commission of, the offense of introducing firearms into the Arizona State Prison at Florence, or of both such offenses. Appeals were perfected to the Court of Appeals and petitions for post-conviction relief were filed in the trial court. When relief was denied in the post-conviction proceedings, the petitions for review were consolidated with the direct appeals.

The Court of Appeals reviewed 13 issues in the consolidated cases, 12 of which applied to Sandon, affirmed the convictions, and denied the petitions for review in an 8-page memorandum decision, State v. Sandon, Nos. 2 CA-CR 3076 and 2 CA-CR 3677-2 PR (Ariz.Ct.App. Jan. 15, 1986).

Following this decision, counsel for Sandon filed a petition for review in this Court, selecting three issues that he believed merited our consideration, and that were most likely to result in a grant of review under the criteria set out in Rule 31.19, Ariz.R. Crim.P., 17 A.R.S. (hereafter Rule ____). We denied the petition for review by order on May 28, 1986.

Sandon then sought habeas corpus relief in the federal district court pursuant to 28 U.S.C. § 2254. After the federal court determined that Sandon had not exhausted his state court remedies on 8 issues counsel had not presented to this Court in Sandon's petition for review, Sandon's federal habeas petition was dismissed without prejudice. This petition followed.

In Arizona, every person convicted of a criminal offense has the absolute right to an appeal. That right was considered so fundamental by the framers of our constitution that it was included in the same section covering such basic rights as the right to counsel, the right to compulsory process, the right to have all the other rights without being compelled to advance money or fees to secure them, and several others. Ariz. Const. art. 2 § 24.

In addition to this guaranteed direct appeal, any person who has been convicted of, or sentenced for, a criminal offense in this state may institute a post-conviction proceeding pursuant to Rule 32 to secure relief on the grounds set out in the rules, without payment of any fee, and with an absolute right to be represented by counsel, appointed or retained, in the first of such petitions. See also Comment to Rule 32.1.

In State v. Shattuck, 140 Ariz. 582, 684 P.2d 154 (1984), we pointed out that there was no right to appeal to this Court except in cases in which the death penalty or life imprisonment is imposed. A.R.S. § 12-120.21(A)(1). While Shattuck involved a discussion of the role of counsel in cases appealed according to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the considerations are the same when discretionary review is sought in this Court pursuant to Rule 31.19. "Once the defendant has been given the appeal to which he has a right, state remedies have been exhausted." Shattuck, 140 Ariz. at 585, 684 P.2d at 157. Not only is this Court not "required to accept petitions for review in Anders type cases," id., we are not required to accept them in any case. Id. at 584, 684 P.2d at 156.

A.R.S. § 12-120.21(A)(1) was recently amended, deleting the words "or life imprisonment," giving jurisdiction of direct appeal in those cases to the Court of Appeals. 1989 Ariz. Sess. Laws, Ch. 58.

When counsel, whether retained or appointed, has followed the procedures as outlined above, as counsel for Sandon did in this matter, the case in the Arizona courts is over. The issues decided by the Court of Appeals, even though they had not been presented to this Court in a petition for review, are no longer open to substantive review in this Court, or in any other court in Arizona, absent proper allegations pursuant to Rules 32.1(d), (e) or (g) which allegations are not made in this petition and do not appear of record. Rule 32.2.

"Rule 32.1. Scope of Remedy
* * * * * *
d. He is being held in custody after his sentence has expired;
e. Newly-discovered material facts exist, which the court, after considering

(1) The probability that such facts, if introduced would have changed the verdict, finding or sentencing;

(2) The diligence which would have been required to discover and produce the evidence at trial;

(3) The promptness with which the petitioner has commenced a proceeding after discovery of such facts,

may require that the conviction or sentence be vacated;
* * * * * *
g. There has been a significant change in the law applied in the process which led to the petitioner's conviction or sentence, and there are sufficient reasons to allow retroactive application of the changed legal standard."

State remedies have been exhausted. The petition is dismissed.

GORDON, C.J., FELDMAN, V.C.J., and CAMERON and MOELLER, JJ., concur.

CORCORAN, J., did not participate in the determination of this matter.