                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                     STATE OF ARIZONA, Respondent,

                                        v.

                  JAMES PALMER SWINDLE, Petitioner.

                         No. 1 CA-CR 16-0312 PRPC
                              FILED 9-12-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2012-009407-001
           The Honorable J. Justin McGuire, Judge Pro Tempore

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

James Palmer Swindle, Florence
Petitioner
                           STATE v. SWINDLE
                           Decision of the Court




                      MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which Chief
Judge Samuel A. Thumma and Judge Lawrence F. Winthrop joined.


B E E N E, Judge:

¶1            Petitioner James Palmer Swindle (“Swindle”) petitions for
review from the dismissal of his petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
but deny relief.

¶2            Swindle entered a plea agreement and pled guilty to three
counts of sexual conduct with a minor and was sentenced on Count 1 (as a
repetitive offender) to a term of 1.75 years’ imprisonment, and to lifetime
probation on Counts 2 and 3, all pursuant to stipulations in the plea. All
three counts alleged acts committed on or between October 15, 2011, and
December 24, 2011, but alleged different incidents — the first act of
“penile/vaginal sexual intercourse,” the second act of “penile/oral
copulation,” and the last act of “penile/vaginal intercourse.” The record of
the superior court shows he did not seek review of his plea and sentence.

¶3            Swindle’s probation officer later filed a petition to revoke his
probation for multiple alleged violations and issued a warrant. Swindle
admitted to violation of his probation on both Counts 2 and 3. The superior
court revoked his probation as to both counts and sentenced him to a term
of 2 years’ imprisonment on each count, to be served consecutively. In
pronouncing disposition, the court noted “both these incidents are separate
acts with a minor” and further stated, “[b]ecause they are separate acts on
separate dates, I’m ordering that they run consecutive to each other.”

¶4            Swindle filed a timely notice of post-conviction relief.
Counsel was appointed and filed a notice of completion of post-conviction
review. Swindle then filed his pro se petition for post-conviction review, the
State filed a response, and Swindle filed a reply. The superior court
summarily dismissed his petition, finding Swindle had presented no
colorable claims for relief under Arizona Rule of Criminal Procedure
(“Rule”) 32. Swindle then filed this petition for review.


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                            STATE v. SWINDLE
                            Decision of the Court

¶5              Swindle is now claiming that he is entitled to concurrent
sentences, and his consecutive sentences are illegal as the acts in Count 2
and 3 all fall in the same time frame, with the same victim, under the same
exact statute, and are part of the same “transaction.” He claims that under
Arizona Revised Statutes (“A.R.S.”) section 13-116 and principles
prohibiting double jeopardy, his consecutive sentence is illegal.

¶6             Since Swindle claims that all three sentences should have
been concurrent, his Rule 32 claims are in part a collateral attack on the
original indictment, plea, and sentence, claiming the plea and sentence
were illegal. “Double jeopardy is waived by a plea of guilty. It is a personal
defense which must be affirmatively plead.” Dominguez v. Meehan, 140
Ariz. 329, 332 (App. 1983) (citations omitted). Swindle impliedly waived
this argument by his guilty plea. Further, he did not challenge the original
plea, factual basis, and sentence in a timely manner under Rule 32. See Rule
32.4(a). As such, he is precluded from raising a collateral attack in this
proceeding. See Rule 32.2(a); see also State v. Shrum, 220 Ariz. 115, 118, ¶¶
12-13 (2009) (holding untimely claims regarding the legality of a sentence
are precluded under Rule 32.2(a)).

¶7            However, since there does not appear to be an express waiver
of double jeopardy in the plea or the record, we address Swindle’s claims
on the current disposition only. See State v. Millanes, 180 Ariz. 418, 420 (App.
1994) (“waiver of the prohibition against double jeopardy must be express
rather than implied.”).

¶8            Swindle’s contentions that his sentence to consecutive terms
in prison is illegal, and he is entitled to concurrent sentences on his
revocation sentence, are factually and legally without merit. First, Swindle
does not provide any facts to show that the incidents of sexual conduct with
a minor in Counts 2 and 3 occurred on the same date and time. Nor does
he include transcripts from the original proceeding. “Where matters are
not included in the record on appeal, the missing portions of the record will
be presumed to support the action of the trial court.” State v. Zuck, 134 Ariz.
509, 513 (1982). The indictment and transcript of the court’s disposition
show that the acts in Counts 2 and 3 are “separate acts.” The fact that there
is a broad time frame alleged in the indictment does not mean they occurred
on the same date. Second, even assuming Counts 2 and 3 occurred at or
near the same time, these are alleged as separate and different acts, which
support consecutive sentences. Blockburger v. United States, 284 U.S. 299
(1932) cited by Swindle in his reply to the State’s response to his petition
filed in superior court, makes it clear that successive offenses of the same



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                            STATE v. SWINDLE
                            Decision of the Court

type, no matter how closely they follow one another, constitute separate
offenses. 284 U.S. at 301-02.

¶9            In State v. Griffin, 148 Ariz. 82 (1986), our supreme court held
that sentencing a defendant to a life term on the first count of sexual assault
(by oral contact) and ordering the remaining counts (two of which included
sexual assault by intercourse) to run concurrently with each other but
consecutively to the first count, did not violate A.R.S. § 13-116 or double
jeopardy, even though they occurred on the same occasion. 148 Ariz. at 85-
86 (noting that it is immaterial that punishable acts occur within a very short
time span); see also State v. Williams, 182 Ariz. 548, 562-64 (App. 1995)
superseded in part by rule (holding that multiple acts of sexual assault
occurring in very rapid succession during a single episode can be
considered separate offenses which does not prohibit consecutive
sentences); State v. Boldrey, 176 Ariz. 378, 382-83 (App. 1993) (holding that
imposing consecutive sentences for multiple acts of sexual abuse and
molestation, including intercourse, occurring on one occasion does not
violate equal protection or A.R.S. § 13-116).

¶10           We conclude that the superior court did not abuse its
discretion in summarily denying relief. Accordingly, we grant review but
deny relief.




                         AMY M. WOOD • Clerk of the Court
                          FILED: AA




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