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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAMES PALMER SWINDLE, Petitioner.

No. 1 CA-CR 16-0312 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2012-009407-001

The Honorable J. Justin McGuire, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Diane Meloche

Counsel for Respondent

James Palmer Swindle, Florence

Petitioner

FILED 9-12-2017
STATE v. SWINDLE

Decision of the Court

2

MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which Chief 

Judge Samuel A. Thumma and Judge Lawrence F. Winthrop joined.

B E E N E, Judge:

¶1 Petitioner James Palmer Swindle (“Swindle”) petitions for 

review from the dismissal of his petition for post-conviction relief. We have 

considered the petition for review and, for the reasons stated, grant review 

but deny relief.

¶2 Swindle entered a plea agreement and pled guilty to three 

counts of sexual conduct with a minor and was sentenced on Count 1 (as a 

repetitive offender) to a term of 1.75 years’ imprisonment, and to lifetime 

probation on Counts 2 and 3, all pursuant to stipulations in the plea. All 

three counts alleged acts committed on or between October 15, 2011, and 

December 24, 2011, but alleged different incidents — the first act of 

“penile/vaginal sexual intercourse,” the second act of “penile/oral 

copulation,” and the last act of “penile/vaginal intercourse.” The record of 

the superior court shows he did not seek review of his plea and sentence.

¶3 Swindle’s probation officer later filed a petition to revoke his 

probation for multiple alleged violations and issued a warrant. Swindle 

admitted to violation of his probation on both Counts 2 and 3. The superior 

court revoked his probation as to both counts and sentenced him to a term 

of 2 years’ imprisonment on each count, to be served consecutively. In 

pronouncing disposition, the court noted “both these incidents are separate 

acts with a minor” and further stated, “[b]ecause they are separate acts on 

separate dates, I’m ordering that they run consecutive to each other.”

¶4 Swindle filed a timely notice of post-conviction relief. 

Counsel was appointed and filed a notice of completion of post-conviction 

review. Swindle then filed his pro se petition for post-conviction review, the 

State filed a response, and Swindle filed a reply. The superior court 

summarily dismissed his petition, finding Swindle had presented no 

colorable claims for relief under Arizona Rule of Criminal Procedure 

(“Rule”) 32. Swindle then filed this petition for review.
STATE v. SWINDLE

Decision of the Court

3

¶5 Swindle is now claiming that he is entitled to concurrent 

sentences, and his consecutive sentences are illegal as the acts in Count 2 

and 3 all fall in the same time frame, with the same victim, under the same 

exact statute, and are part of the same “transaction.” He claims that under 

Arizona Revised Statutes (“A.R.S.”) section 13-116 and principles 

prohibiting double jeopardy, his consecutive sentence is illegal.

¶6 Since Swindle claims that all three sentences should have 

been concurrent, his Rule 32 claims are in part a collateral attack on the 

original indictment, plea, and sentence, claiming the plea and sentence 

were illegal. “Double jeopardy is waived by a plea of guilty. It is a personal 

defense which must be affirmatively plead.” Dominguez v. Meehan, 140 

Ariz. 329, 332 (App. 1983) (citations omitted). Swindle impliedly waived 

this argument by his guilty plea. Further, he did not challenge the original

plea, factual basis, and sentence in a timely manner under Rule 32. See Rule 

32.4(a). As such, he is precluded from raising a collateral attack in this 

proceeding. See Rule 32.2(a); see also State v. Shrum, 220 Ariz. 115, 118, ¶¶ 

12-13 (2009) (holding untimely claims regarding the legality of a sentence 

are precluded under Rule 32.2(a)).

¶7 However, since there does not appear to be an express waiver 

of double jeopardy in the plea or the record, we address Swindle’s claims 

on the current disposition only. See State v. Millanes, 180 Ariz. 418, 420 (App. 

1994) (“waiver of the prohibition against double jeopardy must be express 

rather than implied.”).

¶8 Swindle’s contentions that his sentence to consecutive terms 

in prison is illegal, and he is entitled to concurrent sentences on his 

revocation sentence, are factually and legally without merit. First, Swindle 

does not provide any facts to show that the incidents of sexual conduct with 

a minor in Counts 2 and 3 occurred on the same date and time. Nor does 

he include transcripts from the original proceeding. “Where matters are 

not included in the record on appeal, the missing portions of the record will 

be presumed to support the action of the trial court.” State v. Zuck, 134 Ariz. 

509, 513 (1982). The indictment and transcript of the court’s disposition 

show that the acts in Counts 2 and 3 are “separate acts.” The fact that there 

is a broad time frame alleged in the indictment does not mean they occurred 

on the same date. Second, even assuming Counts 2 and 3 occurred at or 

near the same time, these are alleged as separate and different acts, which 

support consecutive sentences. Blockburger v. United States, 284 U.S. 299 

(1932) cited by Swindle in his reply to the State’s response to his petition 

filed in superior court, makes it clear that successive offenses of the same 
STATE v. SWINDLE

Decision of the Court

4

type, no matter how closely they follow one another, constitute separate 

offenses. 284 U.S. at 301-02.

¶9 In State v. Griffin, 148 Ariz. 82 (1986), our supreme court held 

that sentencing a defendant to a life term on the first count of sexual assault 

(by oral contact) and ordering the remaining counts (two of which included 

sexual assault by intercourse) to run concurrently with each other but 

consecutively to the first count, did not violate A.R.S. § 13-116 or double 

jeopardy, even though they occurred on the same occasion. 148 Ariz. at 85-

86 (noting that it is immaterial that punishable acts occur within a very short 

time span); see also State v. Williams, 182 Ariz. 548, 562-64 (App. 1995) 

superseded in part by rule (holding that multiple acts of sexual assault 

occurring in very rapid succession during a single episode can be 

considered separate offenses which does not prohibit consecutive 

sentences); State v. Boldrey, 176 Ariz. 378, 382-83 (App. 1993) (holding that

imposing consecutive sentences for multiple acts of sexual abuse and 

molestation, including intercourse, occurring on one occasion does not 

violate equal protection or A.R.S. § 13-116).

¶10 We conclude that the superior court did not abuse its 

discretion in summarily denying relief. Accordingly, we grant review but

deny relief.