Opinion
No. 1 CA-CR 15-0734 PRPC
09-19-2017
STATE OF ARIZONA, Respondent, v. DOUGLAS MAX BOLDT, Petitioner.
COUNSEL Yavapai County Attorney's Office, Prescott By Sheila Sullivan Polk Counsel for Respondent Douglas Max Boldt, Florence Petitioner
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Petition for Review from the Superior Court in Yavapai County
No. P1300CR20010395
The Honorable Jennifer B. Campbell, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Yavapai County Attorney's Office, Prescott
By Sheila Sullivan Polk
Counsel for Respondent
Douglas Max Boldt, Florence
Petitioner
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in which Judge Jon W. Thompson and Judge Paul J. McMurdie joined.
CATTANI, Judge:
¶1 Douglas Max Boldt petitions for review from the superior court's summary dismissal of his seventh successive petition for post-conviction relief. For reasons that follow, we grant review but deny relief.
¶2 In 2002, Boldt pleaded guilty to the first-degree felony murder of his three-month-old daughter. Boldt admitted at the change of plea hearing that he "snapped" when he could not get his daughter to stop crying and, although he knew she might be injured, he intentionally threw her into her crib "with great force" twice in a matter of minutes, causing her head to strike the wooden crib each time; he then waited more than an hour to seek medical attention for her, and she died. Boldt later asked to withdraw from the plea, urging that his daughter's death was in fact accidental, her injuries were inconsistent with the structure of the crib, and his statements to the contrary at the change of plea hearing were lies suggested by his attorney. The superior court denied the request to withdraw from the plea and, after hearing testimony from Boldt's wife (including a description of the structure of the crib) and the medical examiner to reinforce the factual basis for the plea, sentenced Boldt to imprisonment for natural life.
¶3 In his seventh petition for post-conviction relief, Boldt claimed he had newly discovered evidence that the State did not examine the crib, never admitted the crib into evidence, and does not now possess the crib, and he claimed that the crib (if examined) would have shown that the victim's injuries were not consistent with the physical properties of the crib, establishing his actual innocence. See Ariz. R. Crim. P. 32.1(e) (newly discovered evidence), (h) (actual innocence). The superior court summarily dismissed the petition, noting that Boldt had asserted the same basis for relief in 2002 when seeking to withdraw his guilty plea, and recounting the additional evidence (beyond Boldt's own statements) supporting the factual basis. This petition for review followed.
¶4 We deny relief. Boldt asserted the same claim—that the victim's injuries were not consistent with the physical construction of the crib—in his petition for post-conviction relief of-right in 2003, which the superior court dismissed. Because Boldt previously raised this claim for relief, it is now precluded. Ariz. R. Crim. P. 32.2(a). Although Boldt now couches the claim in terms of newly discovered evidence, the structure of the crib and any inconsistencies between the crib and the victim's injuries were known and explored during the initial plea and presentencing proceedings, and the State's purported failure to retain or examine the crib
does not constitute newly discovered evidence. See State v. Bilke, 162 Ariz. 51, 52-53 (1989) (defining newly discovered evidence as evidence that existed at the time of trial but was not discovered until after trial).
¶5 Accordingly, we grant review but deny relief.