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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DON D. PEVE, Petitioner.
No. 1 CA-CR 15-0570 PRPC
1 CA-CR 16-0921 PRPC
(Consolidated)
FILED 6-1-2017
Petition for Review from the Superior Court in Yavapai County
No. P1300CR20040253
The Honorable Jennifer B. Campbell, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Yavapai County Attorney's Office, Prescott
By Dana E. Owens
Counsel for Respondent
Don D. Peve, Florence
Petitioner
STATE v. PEVE
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the court, in
which Judge Patricia K. Norris and Chief Judge Michael J. Brown joined.
J O H N S E N, Judge:
¶1 This case involves two petitions for review that we have
consolidated. Both petitions arise from the same conviction and sentence.
In 1 CA-CR 15-0570 ("the first case"), Peve seeks review of the summary
dismissal of his fourth successive petition for post-conviction relief. In 1
CA-CR 16-0921 ("the second case"), Peve seeks review of the denial of his
motion for "clarification" of and "compliance" with his sentence. In the
second case, Peve does not expressly invoke Arizona Rule of Criminal
Procedure 32, but the State treated it as a successive petition for post-
conviction relief and the superior court agreed with the State's analysis. We
elect to address Peve's filing in the second case as a petition for review from
the summary dismissal of a successive petition for post-conviction relief.
We accept review of both petitions, but deny relief.
¶2 In 2004, Peve pled guilty to sexual assault and attempted
sexual abuse. As a result of the plea, the superior court revoked Peve's
probation for fraudulent schemes and artifices in a separate case, and
sentenced Peve to five years' imprisonment on that charge. On the charges
of sexual assault and attempted sexual abuse, the court imposed concurrent
terms of incarceration of 10 and 1.5 years, to run consecutively with the
fraud sentence.
¶3 In his petition for review in the first case, Peve argues the
Arizona Department of Corrections ("DOC") has unilaterally and
unlawfully converted his sentence for sexual assault to a "flat-time" term for
calendar years, making him ineligible for earned release credit. In his
petition for review in the second case, Peve similarly argues that his plea
agreement specified that he would receive release credit, but that DOC has
unlawfully changed his term to "flat time."
¶4 It is true that the plea agreement stated that Peve would be
eligible for early release; the agreement also, however, specified that Peve
would plead guilty under Arizona Revised Statutes ("A.R.S.") section 13-
1406 (2017), which does not permit early release for certain sex offenders.
2
STATE v. PEVE
Decision of the Court
See A.R.S. § 13-1406(B).1 In its sentencing order, the court did not specify a
flat-time sentence, but imposed incarceration pursuant to A.R.S. § 13-1406.
¶5 If, despite the clear language of A.R.S. § 13-1406(B), Peve
wished to assert that his sentence for sexual assault was not flat time and
the language in the plea agreement regarding earned release credit applied,
he could have done so in a prior post-conviction relief proceeding.2 Any
claim a defendant could have raised in an earlier post-conviction relief
proceeding is precluded. See Ariz. R. Crim. P. 32.2(a). With his petition for
review, Peve has provided a declaration in which he states that until 2015,
"I believed my sentence structure was correct in that I was to serve my full
sentence as flat-time." He further states that it was not until "a friend"
compared his sentencing order with DOC's time computation that he
realized the computation "differed vastly from the Court's Sentencing
Order." Peve did not provide the superior court with the declaration, and
so we will not consider it. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980).
In any event, Peve's declaration defeats any possible contention that he was
unaware that his sentence was to be served flat time.
¶6 Peve also argues DOC violated his right against double
jeopardy by mandating that his term of community supervision will run
beyond his "term-of-years sentence." But he offers no support for his
contention that under Arizona law, community supervision is served
concurrently with a prison sentence. See A.R.S. § 13-603(I) (2017) ("If a
person is convicted of a felony offense and the court sentences the person
to a term of imprisonment, the court at the time of sentencing shall impose
on the convicted person a term of community supervision. The term of
community supervision shall be served consecutively to the actual period
of imprisonment . . . .").
1 Absent material revision after the date of an alleged offense, we cite
a statute's current version.
2 Peve challenged his sentence(s) in all of his prior post-conviction
relief proceedings.
3
STATE v. PEVE
Decision of the Court
¶7 For the foregoing reasons, we grant review of both petitions
but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
4