State v. Interval

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROBERT JOHN INTERVAL, Petitioner.

No. 1 CA-CR 23-0496 PRPC
FILED 09-17-2024

Petition for Review from the Superior Court in Maricopa County
No. CR2017-126548-001
The Honorable David J. Palmer, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Respondent

Robert John Interval, Buckeye
Petitioner

STATE v. INTERVAL
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Michael S. Catlett and Vice Chief Judge Randall M. Howe
joined.

P E R K I N S, Judge:

¶1 Robert John Interval petitions this court for review from the
dismissal of his petition for post-conviction relief (“PCR”). We have
considered the petition for review and, for the reasons stated, grant review
and deny relief.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 A grand jury indicted Interval with one count of first-degree
murder. At trial, the jury convicted Interval of the lesser included offense
of second-degree murder and the superior court sentenced him
accordingly. In a previous appeal, Interval challenged the sufficiency of the
evidence and the admission of prior bad acts. State v. Interval, 1 CA-CR 19-
0325, 2020 WL 6501859, at *1, ¶ 1 (App. Nov. 5, 2020). We rejected those
claims and affirmed his conviction and sentence. Id.

¶3 Interval filed a notice of post-conviction relief. Counsel found
no colorable claims after reviewing the record. Interval filed a pro per
petition, claiming that instructing the jury on second-degree murder
violated his due process rights, subjected him to double jeopardy, and that
counsel proved ineffective when he failed to object to the lesser included
instruction. The trial court dismissed the petition.

¶4 Interval petitioned for review. We review a superior court’s
ruling on a PCR petition for an abuse of discretion. State v. Bigger, 251 Ariz.
402, 407, ¶ 6 (2021).

DISCUSSION

I. Jury Instructions

¶5 Interval again challenges the jury instructions for second-
degree murder. But he waived this claim by failing to raise it on appeal.
Ariz. R. Crim. P. 32.2(a)(3); see State v. Carver, 160 Ariz. 167, 175 (1989)

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STATE v. INTERVAL
Decision of the Court

(“Failure to argue a claim usually constitutes . . . waiver of that claim.”).
And his argument lacks merit. A defendant is on notice for a lesser included
offense instruction and the superior court may instruct the jury on a lesser
included offense over the parties’ objections. State v. Gipson, 229 Ariz. 484,
486–87, ¶ 14 (2012) (“[T]he defendant is on notice from the beginning of the
proceedings against him that the jury may be asked to consider any lesser
included offenses.”).

II. Sufficient Evidence

¶6 Interval also complains that the State presented insufficient
evidence to convict him of second-degree murder. A challenge against the
sufficiency of the evidence is not a cognizable ground for relief under Rule
32. See State v. Evans, 252 Ariz. 590, 597, ¶ 18 (App. 2022). And this court
finally adjudicated this claim on the merits in his appeal, thus precluding
us from considering it again now. Ariz. R. Crim. P. 32.2(a)(2). Interval
makes other “vague and conclusory or wholly incredible” complaints we
need not address. State v. Krum, 183 Ariz. 288, 295 (1995) (cleaned up).
Interval identified no valid basis for relief.

CONCLUSION

¶7 We grant review and deny relief.

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

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