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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 MICHAEL GLENN HAZZARD, Petitioner.

                         No. 1 CA-CR 15-0746 PRPC
                             FILED 5-23-2017


    Petition for Review from the Superior Court in Maricopa County
                           No. CR2000-091770
                  The Honorable Alfred M. Fenzel, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Michael Glenn Hazzard, Florence
Petitioner



                       MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge James P. Beene joined.
                            STATE v. HAZZARD
                            Decision of the Court

T H U M M A, Judge:

¶1            Petitioner Michael Glenn Hazzard seeks review of the
superior court’s order denying his petition for post-conviction relief, filed
pursuant to Arizona Rule of Criminal Procedure 32.1 (2017).1 Absent an
abuse of discretion or error of law, this court will not disturb a superior
court’s ruling on a petition for post-conviction relief. State v. Gutierrez, 229
Ariz. 573, 577 ¶ 19 (2012). Finding no such error, this court grants review
but denies relief.

¶2            In July 2000, Hazzard pled guilty to one count each of sexual
conduct with a minor, a Class 2 felony and dangerous crime against
children in the first degree (Count 1); and attempted sexual conduct with a
minor, a Class 3 felony and dangerous crime against children in the second
degree (Count 2). The offenses were committed on or between August 1,
1994 and December 31, 1995. The court imposed the maximum prison
sentence of 27 years for Count 1 to be followed by lifetime probation for
Count 2.

¶3            Hazzard timely filed a notice for post-conviction relief, but,
after reviewing the record, appointed counsel could find no claims for
relief. Although the superior court allowed Hazzard additional time to file
a petition for post-conviction relief as a self-represented litigant, he failed
to do so. The court then dismissed the Rule 32 proceeding.

¶4             In 2010, Hazzard filed a combined notice and petition for
post-conviction relief. He raised claims of ineffective assistance of trial and
Rule 32 counsel, and he challenged his sentence and lifetime probation due
to a significant change in the law. The superior court dismissed the petition,
and this court denied review in 1 CA-CR 10-0992 PRPC.

¶5            In July 2015, Hazzard filed another combined notice and
petition for post-conviction relief. He repeated his claims of ineffective
assistance and his challenges to the sentence and lifetime probation.
Hazzard also raised new arguments regarding the lawfulness and
constitutionality of his sentence and consecutive probation. The court
summarily dismissed the Rule 32 proceedings, finding Hazzard’s
successive and untimely claims were precluded. The court also rejected
Hazzard’s Rule 32.1(d) claim because he misconstrued the applicable
sentencing statutes in arguing that he should have been sentenced to five

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


                                       2
                             STATE v. HAZZARD
                             Decision of the Court

years for Count 1. See Ariz. R. Crim. P. 32.1(d) (held in custody after
expiration of sentence). This timely petition for review followed.

¶6             Hazzard argues his unlawful sentence amounted to
fundamental error entitling him to be resentenced and that the superior
court “was without jurisdiction to render an illegal judgment or to impose
an illegal sentence.” He also argues the court erred in finding his claims
precluded. According to Hazzard, he should be able to untimely raise his
sentencing claims because he recently discovered the purported
unlawfulness of his sentence and probation, and therefore, Rules 32.1(e)
(newly discovered facts) and (g) (significant change in the law) “afford[] a
vehicle” for properly raising untimely Rule 32.1(a) claims. In support, he
cites Stewart v. Smith, 202 Ariz. 446 (2002) and State v. Rosales, 205 Ariz. 86
(App. 2003). Hazzard also argues that, as a “layman,” he should not be held
to the same standard as a “professional trained in the law.”

¶7            The superior court is authorized to summarily dismiss a Rule
32 proceeding based on preclusion. Ariz. R. Crim. P. 32.2(a), 32.6(c). A claim
is precluded when it “has been waived at trial, on appeal or in any previous
collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(3). Any claim that could
have been (or was) raised in an earlier Rule 32 proceeding is precluded. See
Ariz. R. Crim. P. 32.2(a); see also State v. Bennett, 213 Ariz. 562, 566 ¶ 14
(2006). A petitioner like Hazzard, who files a successive notice of post-
conviction relief, may only assert claims that fall within Rule 32.1(d), (e), (f),
(g), or (h), and must state in the notice “meritorious reasons . . .
substantiating the claim and indicating why the claim was not stated in the
previous petition or in a timely manner.” Ariz. R. Crim. P. 32.2(b).

¶8              Because Hazzard’s sentencing claims were pursuant to Rule
32.1 (a) (unconstitutional conviction or sentence) and (c) (illegal sentence),
they were properly subject to preclusion. See Ariz. R. Crim. P. 32.2(a); see
also State v. Peek, 219 Ariz. 182, 183 ¶ 4 (2008); State v. Cazares, 205 Ariz. 425,
426, ¶ 4 (App. 2003). Had he filed a timely self-represented petition after
Rule 32 counsel filed the notice of completion, Hazzard could have raised
his sentencing and ineffective assistance claims, thereby avoiding
preclusion. Ariz. R. Crim. P. 32.4(a). Additionally, Hazard was precluded
from repeating claims that that he raised in his previous petition for post-
conviction relief. Bennett, 213 Ariz. at 566 ¶ 14.

¶9               Hazzard’s attempts to circumvent preclusion by
characterizing his purported unlawful sentence and probation as
“fundamental error” and as depriving the superior court of “jurisdiction”
fail. See State v. Smith, 184 Ariz. 456, 460 (1996) (no fundamental error review
in post-conviction relief proceeding); State v. Bryant, 219 Ariz. 514, 517 ¶¶

                                        3
                            STATE v. HAZZARD
                            Decision of the Court

14-17 (App. 2008) (an illegal sentence is not a lack of subject matter
jurisdiction error). Nor are these deficiencies cured by Hazzard’s assertion
that, as a self-represented petitioner, he should be held to a lesser standard.
Cf. State v. Cornell, 179 Ariz. 314, 331 (1994) (“[A] defendant acting in propria
persona is subject to the same rules as an attorney.”).

¶10          Hazzard’s reliance on Smith also is misplaced. In Smith, the
Arizona Supreme Court responded to a certified question from the United
States Supreme Court as follows:

              [I]f petitioner asserts ineffective assistance of
              counsel for the first time in a successive Rule 32
              petition, the question of preclusion is
              determined by the nature of the right allegedly
              affected by counsel’s ineffective performance. If
              that right is of sufficient constitutional
              magnitude to require personal waiver by the
              defendant and there has been no personal
              waiver, the claim is not precluded. If it is not of
              such magnitude, the claim is precluded.

Smith, 202 Ariz. at 450 ¶ 12. Notably, the court did not hold that sentencing
error “is of sufficient constitutional magnitude to require personal waiver
by the defendant” to avoid precluding a Rule 32 claim of ineffective
assistance of counsel based on counsel’s purported failure to address an
alleged unlawful sentence. Nor does Hazzard cite any applicable authority
standing for that proposition. Moreover, Smith does not address Arizona
law regarding preclusion of Rule 32 claims challenging a sentence’s
lawfulness; it only addresses ineffective assistance of counsel claims.

¶11           Rosales similarly is inapposite. In that case, the petitioner
successfully sought leave to file a delayed direct appeal under Rule 32.1(f).
Rosales, 205 Ariz. at 87 ¶ 3. On appeal, this court affirmed the petitioner’s
convictions, modified some of his sentences and remanded for resentencing
on the others. Id. After the mandate issued, the petitioner through appellate
counsel timely filed with the superior court a notice of post-conviction
relief, who sought replacement counsel because the notice asserted a claim
of ineffective assistance of appellate counsel. 205 Ariz. at 87 ¶¶ 3-4. The
superior court summarily dismissed the Rule 32 proceedings. Id. at ¶ 4. This
court vacated the dismissal, reasoning that the notice was timely and
represented the first opportunity for petitioner to raise a claim of ineffective
assistance of appellate counsel, a cognizable claim under Rule 32. Id. at 89
¶¶ 7-8. Here, however, during his initial Rule 32 proceedings, Hazzard had


                                       4
                           STATE v. HAZZARD
                           Decision of the Court

the opportunity to file a self-represented petition and properly raise a claim
of ineffective assistance of counsel at that time. He failed to do so.

¶12           Here, unlike Smith and Rosales, Hazzard’s successive and
untimely petition for post-conviction relief did not present a situation
where a finding of preclusion of an untimely Rule 32 claim resulted in an
abuse of discretion.

¶13             Finally, with respect to the merits of Hazzard’s substantive
claims of an unlawful sentence and probation, the superior court’s
dismissal order clearly identified and correctly ruled upon the merits. The
court did so in a thorough, well-reasoned manner that will allow any future
court to understand the court’s rulings. Accordingly, “[n]o useful purpose
would be served by this court rehashing the trial court’s correct ruling in a
written decision.” State v. Whipple, 177 Ariz. 272, 274 (App. 1993). Therefore,
this court adopts the superior court’s reasoning, also noting that because
Hazzard’s sentence and probation were lawful, counsel was not ineffective
for failing to argue otherwise.

¶14           For these reasons, this court grants review and denies relief.




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




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