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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GERALD CHARLES SOUCH, Petitioner/Appellant,

v.

CHARLES L. RYAN, et al., Respondents/Appellees.

No. 1 CA-HC 18-0008

Appeal from the Superior Court in Maricopa County

No. LC2018-000253-001

The Honorable Geoffrey H. Fish, Judge

AFFIRMED

COUNSEL

Gerald Charles Souch, Kingman

Petitioner/Appellant

Arizona Attorney General’s Office, Phoenix

By Michael E. Gottfried

Counsel for Respondents/Appellees

MEMORANDUM DECISION

Chief Judge Peter B. Swann delivered the decision of the court, in which 

Judge Diane M. Johnsen and Judge Samuel A. Thumma joined.

FILED 7-23-2019
SOUCH v. RYAN, et al.

Decision of the Court

2

S W A N N, Chief Judge:

¶1 Gerald Souch appeals from an order denying his habeas 

corpus petition, claiming his sentences are illegal and asserting the court 

abused its discretion when it failed to correct the sentences. For reasons 

that follow, we affirm. 

¶2 In 1987, Souch pled guilty to armed burglary, aggravated 

assault, and three counts of sexual assault (all dangerous offenses) and was 

sentenced to a total of 58 years in prison. See State v. Souch, 2 CA-CR 13-

0349-PR, 2013 WL 6055404, at *1, ¶ 2 (Ariz. App. Nov. 15, 2013) (mem. 

decision). We affirmed his sentences and convictions on appeal. Id. at ¶¶ 

4–5. Souch has filed numerous petitions for post-conviction relief, asserting 

that his sentences were illegally imposed. Id. at ¶ 2.

¶3 In the instant habeas corpus petition, Souch contends that the 

court erred by (1) sentencing him to consecutive, rather than concurrent, 

sentences, and (2) sentencing him to longer than “three-fourths of the 

median” range of the presumptive sentences.

¶4 Souch raised these issues in previous petitions for postconviction relief, see State v. Souch, 1 CA-CR 15-0008 PRPC, 2017 WL 

1278850, at *1, ¶ 2 (Ariz. App. Apr. 6, 2017) (mem. decision), and we treat 

habeas applications as Rule 32 petitions for post-conviction relief, Ariz. R. 

Crim. P. (“Rule”) 32.3. A defendant is precluded from relief on any ground 

finally adjudicated on the merits in an appeal or in any previous collateral 

proceeding. Rule 32.2(a)(2). Therefore, Souch’s claims are precluded

because he raised them or could have raised them in an earlier Rule 32 

proceeding. We will, however, address the merits of Souch’s arguments. 

¶5 Souch contends that his sentences were illegally imposed 

because the court sentenced him to consecutive, rather than concurrent, 

sentences. At the time Souch committed the crimes, the sentencing statute 

provided that “the sentence or sentences imposed by the court shall run 

concurrently unless the court expressly directs otherwise.” A.R.S. § 13-708 

(1978)

1; see Rule 26.13 (1985) (reflecting a similar default to concurrent 

sentences). By the time he was sentenced in 1987, the Arizona legislature 

had amended the statute by changing the word “concurrently” to

“consecutively.” See 1986 Ariz. Sess. Laws, ch. 300, § 1 (1st Reg. Sess.); see 

also Ariz. R. Crim. P. 26.13 (1989) (reflecting the same change to consecutive 

 

1 The legislature renumbered this statute to § 13-711 in 2008. See 2008 

Ariz. Sess. Laws, ch. 301, § 27 (2d Reg. Sess.).
SOUCH v. RYAN, et al.

Decision of the Court

3

sentences as in § 13-708). Souch contends that the court abused its 

discretion by sentencing him under the new statute rather than the statute 

existing at the time he committed the crimes.

¶6 The superior court found that this issue had already been 

litigated and resolved in Souch v. Schaivo, 289 F.3d 616 (9th Cir. 2002), and 

adopted those findings and rulings. We agree. The statute only provided 

a default designation if the trial judge failed to specify whether sentences

should be consecutive or concurrent. The trial judge found that Souch 

showed no remorse, was a danger to society, and committed the acts in a 

calculating, dangerous manner. Because the court provided reasons for 

imposing consecutive sentences and could not “find any reason at all why 

any of the sentences should be concurrent,” we find no error in the 

sentences imposed.

¶7 Souch also contends that the court improperly increased his 

sentences by 25 percent when it did not sentence him to a presumptive 

sentence of “three-fourths of the median of the allowable range.” He argues 

the court erred when it denied his habeas claim, stating “there is no such 

sentence as a median sentence.” The 1987 sentencing statute stated that the 

court “shall impose as a presumptive term three-fourths of the median of 

the allowable range,” and we find no error with the sentences imposed. See 

1985 Ariz. Sess. Laws, ch. 364, § 4(G) (1st Reg. Sess.). Souch relies on State 

v. Risco, 147 Ariz. 607 (App. 1985), for his argument that his sentences

should have been 25 percent shorter. But Risco held that the decision to 

deviate from a presumptive term is within the judge’s discretion and 

further, the statute did “not require that any other sentence be imposed 

even if an aggravating or mitigating factor is found to be true.” 147 Ariz. at 

610. The court therefore had the power to mitigate or aggravate Souch’s 

sentences within the presumptive range, and we find no error.

¶8 For the foregoing reasons, we affirm.