State v. Roush

VÁSQUEZ, Judge

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See
Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Pima County
No. CR058092001
The Honorable James E. Marner, Judge

William F. Roush, Florence
In Propria Persona

Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge: ¶1 Petitioner William Roush seeks review of the trial court's summary denial of his successive, untimely petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We grant review and, for the following reasons, deny relief.

¶2 After a jury trial, Roush was convicted of five counts of child abuse and two counts of aggravated assault of a minor under the age of fifteen, all offenses committed against his ten- and thirteen-year-old stepsons between March and July 1997. The trial court found Roush previously had been convicted of felony child abuse and sentenced him to a combination of concurrent and consecutive prison terms, with the longest consecutive terms totaling twenty-three years. We affirmed his convictions and sentences on appeal. State v. Roush, No. 2 CA-CR 98-0098, ¶ 3 (memorandum decision filed Oct. 26, 2000). ¶3 Roush has since filed numerous petitions or motions seeking post-conviction relief; when he has sought our review of the trial court's denial or dismissal of his claims, this court has denied relief as well. See State v. Roush, No. 2 CA-CR 2007-0274-PR (memorandum decision filed Feb. 14, 2008); State v. Roush, No. 2 CA-CR 2005-0313-PR (memorandum decision filed May 23, 2006); State v. Roush, No. 2 CA-CR 2004-0383-PR (decision order filed Apr. 12, 2005); State v. Roush, No. 2 CA-CR 2002-0143-PR (memorandum decision filed Nov. 12, 2002). ¶4 In his most recent successive Rule 32 petition, Roush's primary claim appeared to be that his indictment was "fatally flawed" and the trial court therefore lacked subject matter jurisdiction to enter his convictions and sentences. Most of his other claims stemmed from this same asserted principle; for example, he claimed the state engaged in "prosecutorial misconduct" by "knowingly using" a faulty indictment and maintained he is "actual[ly] innocen[t]," see Ariz. R. Crim. P. 32.1(h), because the trial court lacked subject matter jurisdiction due to the defective indictment. As one basis for the indictment's alleged deficiency, he asserted certain sentencing statutes identified therein had since been "declared unconstitutional." ¶5 After reviewing Roush's first amended petition, his motion to correct that petition, "the Memoranda filed by both parties, the decision on appeal and previous Rule 32 pleadings, along with the relevant portions of the court file," the trial court found Roush had failed to state any colorable, non-precluded claim for relief and dismissed his petition. See Ariz. R. Crim. P. 32.6(c). In a footnote, the court found that none of the papers Roush had filed after his petition were "proper motions or otherwise raise[d] issues within the jurisdiction of this court." The court's ruling was filed on March 6, 2014, and this petition for review followed.

¶6 On review, Roush appears to argue the trial court abused its discretion in failing to address the merits of his claims, in limiting its review to relevant portions of the court file, and in finding his claims precluded without addressing arguments that, according to Roush, implicate the court's subject matter jurisdiction, fundamental error, or a denial of due process. He also disputes the court's determination that none of his claims fell within the exceptions to preclusion found in Rule 32.1(d), (e), (f), (g), or (h). See Ariz. R. Crim. P. 32.2(b). Finally, Roush challenges the court's denial of certain motions he filed in these proceedings. ¶7 We review a trial court's summary denial of post-conviction relief for an abuse of discretion. State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006). We find none here.

¶8 Roush argues that the trial court "confessed error" or "conceded to the issues" because it did not rule on the merits of claims raised in his successive Rule 32 petition. He is mistaken. In accordance with Rule 32.6(c), the court reviewed "the petition, response, reply, files and records" and, as an initial matter, "identif[ied] all claims that are procedurally precluded under" Rule 32. Having determined that none of the claims in Roush's successive, untimely petition fell within an exception to preclusion, the court correctly "order[ed] the petition dismissed." Id. We reject Roush's suggestion that whenever a successive Rule 32 petition is filed, Rule 32.6(c) requires a court to review the entire record before it determines whether a petitioner has asserted a non-precluded claim. ¶9 Roush also asserts his claims implicate subject matter jurisdiction and due process and therefore "cannot be precluded." But although some authorities suggest a challenge to subject matter jurisdiction "can never be forfeited or waived," United States v. Cotton, 535 U.S. 625, 630 (2002), express provisions in Rule 32 designate claims of subject matter jurisdiction under Rule 32.1(b), and such claims are subject to preclusion, see Ariz. R. Crim. P. 32.2(a), (b). Moreover, our supreme court has rejected the argument Roush makes here—that defects in a charging document deprive a court of subject matter jurisdiction. See State v. Maldonado, 223 Ariz. 309, ¶¶ 13-14, 22-25, 223 P.3d 653, 655, 657 (2010) (state's failure to file information was non-jurisdictional claim subject to waiver); see also Cotton, 535 U.S. at 630 ("[D]efects in an indictment do not deprive a court of its power to adjudicate a case."). Accordingly, Roush's claims of a defective indictment have been waived by his failure to raise them at trial, see Maldonado, 223 Ariz. 309, ¶¶ 24-25, 223 P.3d at 657, and are precluded by his failure to raise them "at trial, on appeal, or in any previous collateral proceeding," Ariz. R. Crim. P. 32.2(a)(3). ¶10 Similarly, constitutional claims, even those asserting fundamental error, are subject to waiver and, therefore, to preclusion. See State v. Shrum, 220 Ariz. 115, ¶¶ 6-7, 23, 203 P.3d 1175, 1177, 1180 (2009) (holding illegal sentence claim precluded by waiver); State v. Swoopes, 216 Ariz. 390, ¶ 42, 166 P.3d 945, 958 (App. 2007) (fundamental error not excepted from preclusion). In Shrum, our supreme court explained that "the general rule of preclusion serves important societal interests" and "Rule 32 recognizes few exceptions." 220 Ariz. 115, ¶ 13, 203 P.3d at 1178, citing Ariz. R. Crim. P. 32.2(b) (limiting exceptions to preclusion to claims raised pursuant to Rule 32.1(d), (e), (f), (g), and (h)); see also Ariz. R. Crim. P. 32.4(a) ("Any notice not timely filed may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h)."). ¶11 In a detailed ruling, the trial court reviewed these exceptions and correctly concluded that none of them applied to Roush's claims. We need not repeat that analysis here. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). We supplement the court's analysis only as required to respond to Roush's arguments on review. ¶12 Roush argues he learned only recently that challenges to subject matter jurisdiction may be raised at any time and that certain sentencing statutes had been amended after he was sentenced and this constitutes "newly discovered evidence" giving rise to a non-precluded claim under Rule 32.1(e). Contrary to Roush's arguments, legal principles and legislative amendments are matters of law; they are not "material facts" within the contemplation of Rule 32.1(e), regardless of when Roush learned of them. ¶13 The trial court also correctly concluded that Roush failed to identify any "significant change in the law that if determined to apply to [his] case would probably overturn [his] conviction or sentence." Ariz. R. Crim. P. 32.1(g). Roush cites no legal authority for his assertions that former A.R.S. § 13-604, 1996 Ariz. Sess. Laws, ch. 123, § 1, has been declared unconstitutional "in its entirety" or "since its inception" or that former A.R.S. § 13-702.02, 1994 Ariz. Sess. Laws, ch. 236, § 4, ever has been found unconstitutional. Moreover, Roush offers no support for the proposition that amendments to sentencing statutes would apply retroactively to his case. See A.R.S. § 1-246 (an "offender shall be punished under the law in force when the offense was committed"). ¶14 We also find no merit in Roush's arguments that the trial court abused its discretion in failing to find his claims were grounded in Rule 32.1(d), (f), or (h) and therefore could be raised in a successive, untimely proceeding. See Ariz. R. Crim. P. 32.2(b), 32.4(a). Rule 32.1(d) provides a non-precluded ground for relief when a petitioner "is being held in custody after the sentence imposed has expired." But Roush does not claim the sentences imposed have expired, instead maintaining they are "wrongful" and "illegal." Such claims are grounded in Rule 32.1(a); they could have been raised on appeal or in a previous Rule 32 proceeding and therefore are precluded. See Ariz. R. Crim. P. 32.2(a), (b). ¶15 Rule 32.1(f) provides a non-precluded ground for relief when a petitioner's "failure to file a . . . notice of appeal within the prescribed time was without fault on [his] part." There is no evidence on this record that the notice of appeal filed on Roush's behalf was untimely. See Roush, No. 2 CA-CR 98-0098, ¶ 2. ¶16 And Rule 32.1(h) provides a non-precluded ground for relief for what Roush refers to as "actual innocence." See supra, note 1. But Roush's assertion of this ground is based on his erroneous belief that an allegedly defective indictment deprived the trial court of subject matter jurisdiction. See supra, ¶ 9. As we stated in our decision on direct appeal, "substantial evidence was adduced [at trial] to support [Roush's] seven convictions." Roush, No. 2 CA-CR 98-0098, ¶ 3. The trial court correctly found all of the claims raised in Roush's petition precluded.

¶17 In his petition for review, Roush complains the trial court "failed to rule individually" on the motions identified in the footnote of its March 2014 dismissal. But although Roush "objects" to these rulings in a conclusory manner, he fails to present any meaningful argument that the implicit denial of these motions was an abuse of discretion. See Ariz. R. Crim. P. 32.9(c)(1)(iv) (petition for review "shall contain . . . [t]he reasons why the petition should be granted"). ¶18 Roush's petition for review contains no argument that the trial court abused its discretion by failing to enter express rulings on his other pending motions, which were implicitly denied when the court dismissed his petition. Cf. State v. Paris-Sheldon, 214 Ariz. 500, ¶ 22, 154 P.3d 1046, 1053 (App. 2007) (court's proceeding to trial without ruling on motion to dismiss was implicit denial of motion). He therefore has waived appellate review of issues raised in those motions. See Ariz. R. Crim. P. 32.9(c)(1) ("[f]ailure to raise any issue that could be raised" in petition for review "shall constitute waiver of appellate review of that issue"); cf. State v. Lujan, 136 Ariz. 326, 328, 666 P.2d 71, 73 (1983) ("to rely on the objections raised" in motions in limine, party "has the responsibility of . . . seeing that a record of the rulings makes its way to the reviewing court"). ¶19 In a supplemental filing with this court, Roush challenges the trial court's June 2014 ruling, pertaining to Roush's "'Motions for Remanding Case to Grand Jury for New Finding of Probable Cause,' 'Motions for Disclosure of Exculpatory and Impeachment Evidence,' and 'Request for Evidentiary Hearing' which have a filing date of April 22, 2014." He contends this ruling was "in error" because he had in fact filed the motions on January 15, 2014, before his petition had been dismissed. ¶20 Roush is mistaken. The motions the trial court denied in June 2014 were filed by Roush on April 22, after he failed to raise any issue regarding his similarly captioned January 15 motions in his petition for review by this court. As addressed above, Roush therefore has waived review of rulings on those motions. The court did not abuse its discretion in denying Roush's April 22 motions for the reasons stated in its order. Roush is not entitled to relief from the court's rulings on his motions or because of them.

¶21 For the foregoing reasons, we grant review, but we deny relief.