Charlson v. State

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FRANK WILLIAM CHARLSON,
Appellant,

v.

STATE OF ARIZONA,
Appellee.

No. 1 CA-HC 20-0002
FILED 5-11-2021

Appeal from the Superior Court in Coconino County
No. S0300CV201900540
The Honorable Cathleen Brown Nichols, Judge

AFFIRMED

COUNSEL

Frank William Charlson, Kingman
Appellant

Coconino County Attorney's Office, Flagstaff
By Mark Dillon Huston
Counsel for Appellee
 CHARLSON v. STATE
Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge Jennifer B. Campbell joined.

M O R S E, Judge:

¶1 Frank Charlson appeals from an order denying his petition
for a writ of habeas corpus. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2004, Charlson pled guilty to attempted child molestation,
a class 3 felony, and sexual conduct with a minor, a class 2 felony. He was
sentenced to 20-years imprisonment, followed by a lifetime term of
intensive probation. This Court dismissed Charlson's direct appeal from
the superior court's order denying his motion to withdraw from the plea.
State v. Charlson, 1 CA-CR 05-0005 (Ariz. App. Jan. 10, 2005) (order). In 2006,
Charlson filed a petition for post-conviction relief. The superior court
denied the petition and we declined review. See State v. Charlson, 1 CA-CR
06-0791 PRPC (Ariz. App. Aug. 23, 2007) (order).

¶3 Charlson filed the instant petition in 2019. He asserts the
superior court (1) erred in imposing a consecutive term of lifetime intensive
probation, (2) "lacked jurisdiction to classify the attempted offense as a class
2 felony," (3) denied him the right to speak at sentencing, and (4) erred in
requiring him to register as a sex offender.

¶4 The superior court treated Charlson's claims as a petition for
post-conviction relief. See Ariz. R. Crim. P. 33.3 (providing that any request
for relief challenging the validity of a sentence must be treated as a "petition
for post-conviction relief").1 The court denied the petition, reasoning that it
was "both untimely and successive." See Ariz. R. Crim. P. 33.2(a), 33.4(b)(3).

1 "Effective January 1, 2020, our supreme court amended the post-
conviction relief rules. The amendments 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." State v. Mendoza, 249
Ariz. 180, 182, ¶ 1 n.1 (App. 2020) (cleaned up). We cite the current rules
unless otherwise noted.

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 CHARLSON v. STATE
Decision of the Court

Charlson timely appealed and we have jurisdiction pursuant to A.R.S. §§
12-120.21(A)(1) and -2101(A)(11)(a).2

DISCUSSION

¶5 We review the denial of a writ of habeas corpus for abuse of
discretion. State v. Cowles, 207 Ariz. 8, 9, ¶ 3 (App. 2004). A court abuses its
discretion "where the record fails to provide substantial support for its
decision or the court commits an error of law in reaching the decision." Id.
(quoting Files v. Bernal, 200 Ariz. 64, 65, ¶ 2 (App. 2001)).

¶6 As an initial matter, the superior court did not abuse its
discretion by treating the instant petition as one for post-conviction relief.
Although styled as a habeas corpus petition, Charlson is challenging
aspects of his sentence and the post-conviction rules apply. See Ariz. R.
Crim. P. 33.3, cmt. ("[I]f a convicted defendant files a petition for a writ of
habeas corpus . . . that seeks relief available under Rule 33, the petition or
application will be treated as a petition for post-conviction relief."); In re
Oppenheimer, 95 Ariz. 292, 297 (1964) ("In Arizona, the writ of habeas corpus
may be used only to review matters affecting a court's jurisdiction.").

¶7 We note that the current post-conviction rules require a
defendant to explain why a non-precluded claim was not raised "in a
previous notice or petition" or "in a timely manner." Ariz. R. Crim. P.
33.2(b)(1). As Charlson's petition was filed before the rules were amended,
he had no reason to provide any such explanation. Though we could
remand this matter to provide Charlson an opportunity to comply, we
conclude that remanding this case would result in a waste of judicial
resources as Charlson has not shown any entitlement to relief. See State v.
Emery, 141 Ariz. 549, 553 (1984) ("To remand in such cases would be
inefficient if not futile. Judicial economy requires that we intervene when
the record is . . . as clear as it is in the instant case."); State v. Waicelunas, 1
CA-CR 19-0240 PRPC, 2020 WL 5796172, at *2, ¶¶ 6, 8 (Ariz. App. Sept. 29,
2020) (mem. decision) (reviewing the merits of second post-conviction
petition filed prior to the rule changes). Therefore, we exercise our
discretion and address the merits of Charlson's claims.

2 Although the superior court decided this case as a petition for post-
conviction relief, the court did not "file it in the record of each original case
to which it pertains." Ariz. R. Crim. P. 33.4(b)(4)(A). Accordingly, we treat
this proceeding as an appeal, see A.R.S. § 12-2101(A)(11)(a), rather than a
petition for review, see A.R.S. § 13-4239(C).

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 CHARLSON v. STATE
Decision of the Court

A. Probation.

¶8 Charlson makes several arguments challenging his
subsequent probation term—that the court lacked the authority to impose
both probation and prison, that his prior felonies made him ineligible for
probation, and the probation officer did not recommend intensive
probation. His assertions fail.

¶9 Charlson cites State v. Kraft, 122 Ariz. 527 (App. 1979), for the
proposition that courts lack the authority to sentence a defendant to prison
and probation. But after Kraft, our supreme court held that a trial court may
"impose a prison term and probation at the same time." State v. Jones, 124
Ariz. 24, 27 (1979) (relying on A.R.S. § 13-903); see also State v. Bowsher, 225
Ariz. 586, 590, ¶ 21 (2010) (noting that Jones allows a court, when sentencing
for multiple convictions, "to combine a prison sentence with subsequent
probation"). Thus, courts have the authority to impose a probation tail
consecutive to a prison term.

¶10 We also reject Charlson's argument that he was not probation
eligible due to his prior convictions. Charlson's plea agreement did not
include an admission of prior felonies for the purpose of sentencing
enhancement, and the plea served "to amend the original charge(s) without
the filing of additional pleadings." The State's dismissal of a prior felony
allegation does not preclude the trial court from considering prior felonies
as an aggravating circumstance. State v. Jackson, 130 Ariz. 195, 196 (App.
1981). Thus, Charlson remained probation eligible under the applicable
statutes. See A.R.S. §§ 13-604(C) (2003), -604.01(I), (L)(2) (2003).

¶11 Finally, this Court previously held that the probation
department's recommendation is not a prerequisite to an intensive
probation placement. See State v. Woodruff, 196 Ariz. 359, 360, ¶ 7 (App.
2000). Accordingly, Charlson's conviction for attempted child molestation
was probation eligible.

B. Charlson's Remaining Arguments.

¶12 First, although the sentencing court orally referred to
Charlson's conviction for attempted child molestation as a class 2 felony,
the sentencing order correctly designated it a class 3 felony. The record
shows the superior court misspoke. When a discrepancy between an oral
pronouncement of sentence and a sentencing minute entry can be resolved
on the record, it is not necessary to remand for clarification or correction.
State v. Bowles, 173 Ariz. 214, 216 (App. 1992).

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 CHARLSON v. STATE
Decision of the Court

¶13 Second, Charlson was not denied the opportunity to speak
before sentence was imposed—the court asked if there was any reason
sentence should not be pronounced and his counsel said no. See State v.
Davis, 112 Ariz. 140, 141 (1975) (finding no denial of allocution where
defense counsel stated there was no reason judgment should not be
entered).

¶14 Third, Charlson was not denied notice of the requirement to
register as a sex offender. See Ariz. R. Crim. P. 26.10(b)(3) ("When the court
pronounces sentence, it must . . . explain to the defendant the terms of the
sentence or probation . . . ."). Again, even if the sentencing court misspoke
when it orally referenced "A.R.S. § 13-3621" rather than the registration
statute, A.R.S. § 13-3821, Charlson's plea agreement explicitly required
registration, the court ordered registration at sentencing, and the
sentencing order required registration. We find no reversable error. See
State v. Maddasion, 24 Ariz. App. 492, 496 (1975) (affirming despite trial
judge's technical error when pronouncing sentence).

CONCLUSION

¶15 For the foregoing reasons, we affirm.

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

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