                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


            GERALD CHARLES SOUCH, Petitioner/Appellant,

                                        v.

             CHARLES L. RYAN, et al., Respondents/Appellees.

                             No. 1 CA-HC 18-0008
                               FILED 7-23-2019


           Appeal from the Superior Court in Maricopa County
                        No. LC2018-000253-001
                The Honorable Geoffrey H. Fish, Judge

                                  AFFIRMED


                                   COUNSEL

Gerald Charles Souch, Kingman
Petitioner/Appellant

Arizona Attorney General’s Office, Phoenix
By Michael E. Gottfried
Counsel for Respondents/Appellees



                       MEMORANDUM DECISION

Chief Judge Peter B. Swann delivered the decision of the court, in which
Judge Diane M. Johnsen and Judge Samuel A. Thumma joined.
                          SOUCH v. RYAN, et al.
                           Decision of the Court

S W A N N, Chief Judge:

¶1            Gerald Souch appeals from an order denying his habeas
corpus petition, claiming his sentences are illegal and asserting the court
abused its discretion when it failed to correct the sentences. For reasons
that follow, we affirm.

¶2            In 1987, Souch pled guilty to armed burglary, aggravated
assault, and three counts of sexual assault (all dangerous offenses) and was
sentenced to a total of 58 years in prison. See State v. Souch, 2 CA-CR 13-
0349-PR, 2013 WL 6055404, at *1, ¶ 2 (Ariz. App. Nov. 15, 2013) (mem.
decision). We affirmed his sentences and convictions on appeal. Id. at ¶¶
4–5. Souch has filed numerous petitions for post-conviction relief, asserting
that his sentences were illegally imposed. Id. at ¶ 2.

¶3           In the instant habeas corpus petition, Souch contends that the
court erred by (1) sentencing him to consecutive, rather than concurrent,
sentences, and (2) sentencing him to longer than “three-fourths of the
median” range of the presumptive sentences.

¶4            Souch raised these issues in previous petitions for post-
conviction relief, see State v. Souch, 1 CA-CR 15-0008 PRPC, 2017 WL
1278850, at *1, ¶ 2 (Ariz. App. Apr. 6, 2017) (mem. decision), and we treat
habeas applications as Rule 32 petitions for post-conviction relief, Ariz. R.
Crim. P. (“Rule”) 32.3. A defendant is precluded from relief on any ground
finally adjudicated on the merits in an appeal or in any previous collateral
proceeding. Rule 32.2(a)(2). Therefore, Souch’s claims are precluded
because he raised them or could have raised them in an earlier Rule 32
proceeding. We will, however, address the merits of Souch’s arguments.

¶5             Souch contends that his sentences were illegally imposed
because the court sentenced him to consecutive, rather than concurrent,
sentences. At the time Souch committed the crimes, the sentencing statute
provided that “the sentence or sentences imposed by the court shall run
concurrently unless the court expressly directs otherwise.” A.R.S. § 13-708
(1978)1; see Rule 26.13 (1985) (reflecting a similar default to concurrent
sentences). By the time he was sentenced in 1987, the Arizona legislature
had amended the statute by changing the word “concurrently” to
“consecutively.” See 1986 Ariz. Sess. Laws, ch. 300, § 1 (1st Reg. Sess.); see
also Ariz. R. Crim. P. 26.13 (1989) (reflecting the same change to consecutive


1      The legislature renumbered this statute to § 13-711 in 2008. See 2008
Ariz. Sess. Laws, ch. 301, § 27 (2d Reg. Sess.).


                                      2
                          SOUCH v. RYAN, et al.
                           Decision of the Court

sentences as in § 13-708). Souch contends that the court abused its
discretion by sentencing him under the new statute rather than the statute
existing at the time he committed the crimes.

¶6            The superior court found that this issue had already been
litigated and resolved in Souch v. Schaivo, 289 F.3d 616 (9th Cir. 2002), and
adopted those findings and rulings. We agree. The statute only provided
a default designation if the trial judge failed to specify whether sentences
should be consecutive or concurrent. The trial judge found that Souch
showed no remorse, was a danger to society, and committed the acts in a
calculating, dangerous manner. Because the court provided reasons for
imposing consecutive sentences and could not “find any reason at all why
any of the sentences should be concurrent,” we find no error in the
sentences imposed.

¶7            Souch also contends that the court improperly increased his
sentences by 25 percent when it did not sentence him to a presumptive
sentence of “three-fourths of the median of the allowable range.” He argues
the court erred when it denied his habeas claim, stating “there is no such
sentence as a median sentence.” The 1987 sentencing statute stated that the
court “shall impose as a presumptive term three-fourths of the median of
the allowable range,” and we find no error with the sentences imposed. See
1985 Ariz. Sess. Laws, ch. 364, § 4(G) (1st Reg. Sess.). Souch relies on State
v. Risco, 147 Ariz. 607 (App. 1985), for his argument that his sentences
should have been 25 percent shorter. But Risco held that the decision to
deviate from a presumptive term is within the judge’s discretion and
further, the statute did “not require that any other sentence be imposed
even if an aggravating or mitigating factor is found to be true.” 147 Ariz. at
610. The court therefore had the power to mitigate or aggravate Souch’s
sentences within the presumptive range, and we find no error.

¶8            For the foregoing reasons, we affirm.




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




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