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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   OMAR LATEEF THOMAS, Petitioner.

                         No. 1 CA-CR 15-0429 PRPC
                              FILED 4-27-2017


    Petition for Review from the Superior Court in Maricopa County
                           No. CR1989-009859
                   The Honorable Jose S. Padilla, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Omar Lateef Thomas, Buckeye
Petitioner
                            STATE v. THOMAS
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Donn Kessler joined.


J O N E S, Judge:

¶1            Omar Thomas petitions for review from the trial court’s
summary dismissal of his latest petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
but deny relief.

¶2            In 1990, a jury convicted Thomas of four counts of aggravated
assault and determined he was on probation for two other felony offenses
at the time. The trial court sentenced him to four concurrent terms of life
imprisonment without a possibility of parole for twenty-five years. This
Court affirmed Thomas’s convictions and sentences on direct appeal. State
v. Thomas, 1 CA-CR 90-382 (Ariz. App. Apr. 14, 1992) (mem. decision).
Thomas filed a number of petitions for post-conviction relief, which were
denied. He then filed this successive petition for post-conviction relief,
which was also dismissed. Thomas now petitions for review, claiming his
maximum sentence has expired based upon a significant change in the law
and because he was denied access to the clemency process. Specifically,
Thomas asserts the court improperly dismissed his petition because it
misunderstood his intention to file a wholly new claim for post-conviction
relief. Thomas asserts his petition is permissible under Arizona Rule of
Criminal Procedure 32.1(d), permitting relief where “[t]he person is being
held in custody after the sentence imposed has expired,” and Rule 32.1(g),
permitting relief where “[t]here has been a significant change in the law that
if determined to apply to defendant’s case would probably overturn the
defendant’s conviction or sentence.” Thomas also asserts his claim is
meritorious based upon a 1993 amendment to Arizona’s sentencing
guidelines and the now-repealed 1994 Disproportionality Review Act
(DRA). For these reasons, Thomas contends, the dismissal of his petition
was arbitrary and capricious.

¶3             We review the denial of a petition for post-conviction relief
for an abuse of discretion. State v. Jenkins, 193 Ariz. 115, 118, ¶ 5 (App. 1998)
(citing State v. Schrock, 149 Ariz. 433, 441 (1986)). Thomas has not met his



                                       2
                            STATE v. THOMAS
                            Decision of the Court

burden of demonstrating relief was warranted under Arizona Rule of
Criminal Procedure 32.1(d) or (g).

¶4               At the time Thomas was convicted, Arizona law provided
that “a person convicted of [certain felony offenses], if committed while the
person is on probation for a conviction of a felony offense or parole . . . shall
be sentenced to life imprisonment and is not eligible for suspension or
commutation of sentence . . . or release from confinement on any other basis
. . . until the person has served not less than twenty-five years.” Ariz. Rev.
Stat. (A.R.S.) § 13-604.02(A) (1990). Thomas was sentenced accordingly. In
1993, the statute was amended to provide that a person who commits an
offense while released from confinement “shall be sentenced to
imprisonment for not less than the presumptive sentence.” 1993 Ariz.
Legis. Serv., ch. 255, § 9 (1st. Reg. Sess.). Although the statute effectively
reduced the mandatory minimum sentence for a person, such as Thomas,
who was convicted of committing offenses while on felony release after the
amendment’s effective date, Thomas is not entitled to the benefit of the
change. See A.R.S. § 1-246 (2017) (“When the penalty for an offense is
prescribed by one law and altered by a subsequent law, the penalty of such
second law shall not be inflicted for a breach of the law committed before
the second took effect, but the offender shall be punished under the law in
force when the offense was committed.”); see also State v. Stine, 184 Ariz. 1,
3 (App. 1995).

¶5            Thomas also relies on the DRA to support his claim for post-
conviction relief. The DRA was enacted in response to the “proportionality
problem” created by the amendment to A.R.S. § 13-604.02 whereby “[t]hose
convicted of violating certain laws before 1994 were treated much more
harshly than those convicted of the same violations after the effective date
of the amendments.” McDonald v. Thomas, 202 Ariz. 35, 38, ¶ 3 (2002). The
DRA “permitted review of such sentences and . . . provided that if, on
review of the sentence, the Arizona Board of Executive Clemency
‘unanimously recommends commutation and the governor fails to act on
that recommendation within 90 days after receiving the recommendation,
the recommendation for commutation automatically becomes effective.’”
Id. (quoting 1994 Ariz. Sess. Laws, ch. 365, § 1(G) (2d Reg. Sess.). Although
the DRA was repealed in 1996, id., Thomas complains he was arbitrarily
denied access to the clemency process set forth in the DRA. The record,
however, reflects Thomas was deemed statutorily ineligible for relief.

¶6            Thomas has failed to present circumstances that would
suggest he was sentenced improperly or has been held in custody beyond
the expiration of the sentence imposed. In the absence of any material issue


                                       3
                          STATE v. THOMAS
                          Decision of the Court

of fact or law entitling Thomas to relief, the trial court was required to
summarily dismiss the petition. Ariz. R. Crim. P. 32.6(c). We cannot say
the court erred in doing so here.

¶7           Accordingly, we accept review but deny relief.




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




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