State v. Dikes

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DENNIS L. DIKES, II, Petitioner.

No. 1 CA-CR 20-0217 PRPC
FILED 10-22-2020

Petition for Review from the Superior Court in Navajo County
No. S0900CR20010192
The Honorable Robert J. Higgins, Judge

REVIEW GRANTED; REMANDED

COUNSEL

Navajo County Attorney’s Office, Holbrook
By Michael R. Shumway
Counsel for Respondent

Dennis Laprell Dikes, II, Florence
Petitioner
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Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge James B. Morse Jr. and Judge Maria Elena Cruz joined.

M c M U R D I E, Judge:

¶1 Dennis L.1 Dikes, II, seeks review of the superior court’s
summary dismissal of his successive petition for post-conviction relief
(“PCR”). Dikes pled guilty in August 2001 to aggravated assault and escape
in the first degree in cause number CR20010192 and escape in the second
degree in cause number CR20010380 (both cases collectively, “2001 Cases”).

FACTS AND PROCEDURAL BACKGROUND

¶2 On August 31, 2001, the court sentenced Dikes to presumptive
and concurrent prison terms, the longest of which was 7.5 years. The court
ordered those sentences to run consecutively to “any time” Dikes was
serving in unrelated matters. Dikes expressly noted he would not get out of
custody for “21 years.”

¶3 On September 12, 2012, Dikes filed a “Motion for Clarification
and Order to Comply/Cases Consolidated Per Plea Agreement.” In that
motion, Dikes claimed the Arizona Department of Corrections (“DOC”)
increased his incarceration time to punish him for filing a grievance. The
superior court denied the motion, finding Dikes’ claim was based on a
clerical error that DOC corrected.

¶4 On November 23, 2015, Dikes filed another motion
challenging his sentences. Specifically, Dikes argued he was entitled to 182
days of presentence incarceration credit. Treating the motion as a PCR
petition, the superior court denied it as untimely.

¶5 Over three years later, Dikes filed yet another motion, this
time challenging the consecutive terms of community supervision imposed
in the 2001 Cases and his other criminal matters. Dikes also claimed he was

1 On the court’s motion, the caption in this matter has been amended to
include the use of Dikes’ middle initial. This amended caption shall be used
on any future filings.

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 STATE v. DIKES
Decision of the Court

“unlawfully imprisoned, deprived of due process and subjected to cruel
and unusual punishment.”2 The superior court summarily denied the
motion.

¶6 Dikes then filed a PCR notice and petition (“Petition”) on
October 21, 2019. Dikes raised a claim under Rule 32.1(d) (2019),3 arguing
he was being held beyond the term of his sentence. See Ariz. R. Crim. P.
33.1(d) (a defendant who pled guilty and “continues to be or will continue
to be in custody after his or her sentence expired” is entitled to post-
conviction relief). According to Dikes and an exhibit attached to the
Petition, his 7.5-year sentence in CR20010192 expired on October 3, 2019.

¶7 On March 27, 2020, the superior court summarily dismissed
the Petition as untimely. This petition for review followed.

DISCUSSION

¶8 Although some PCR claims must be raised within 90 days of
sentencing, Rule 33.1(d) claims are timely if filed “within a reasonable time
after discovering the basis for the claim.” Ariz. R. Crim. P. 33.4(b)(3)(A)–(B).
The State concedes that the 18 days between the date Dikes’ sentence
purportedly expired and the date he filed the Petition is a “reasonable time”
for purposes of Rule 33.4. Accordingly, the State agrees that the superior
court abused its discretion by dismissing the Petition as untimely. See State
v. Jenkins, 193 Ariz. 115, 118, ¶ 5 (App. 1998) (this court reviews the grant or
denial of post-conviction relief for an abuse of discretion). The State
requests this matter be remanded for the superior court to rule on the merits
of Dikes’ Rule 33.1(d) claim.

2 According to the motion, Dikes was released on September 28, 2018,
to begin community supervision and “was returned to confinement on
[January 31, 2019].”

3 Effective January 1, 2020, our supreme court amended the PCR rules.
State v. Botello-Rangel, 248 Ariz. 429, 430, ¶ 1, n.1 (App. 2020). The amended
rules apply to all cases pending on the effective date unless a court
determines that “applying the rule or amendment would be infeasible or
work an injustice.” Id. Because there were no substantive changes to the
respective rules related to this decision, we apply and cite to the current
rules except where otherwise noted.

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Decision of the Court

¶9 Although we are not required to accept the State’s concession
of error, State v. Sanchez, 174 Ariz. 44, 45 (App. 1993), we do so here because
the State does not argue that an independent basis exists in the record to
deny relief. See State v. Wassenaar, 215 Ariz. 565, 577, ¶ 50 (App. 2007) (“We
may affirm on any basis supported by the record.”). Accordingly, we accept
the State’s concession of error.

CONCLUSION

¶10 We grant review and remand this matter to the superior court
to address the merits of Dikes’ claim for post-conviction relief. We express
no opinion on the proper disposition of the claim.

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

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