Opinion
No. 1 CA-CR 13-0777 PRPC
06-04-2015
STATE OF ARIZONA, Respondent, v. FRUTOSO ZEPEDA CORRAL, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Diane Meloche Counsel for Respondent Frutoso Zepeda Corral, Tucson 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
No. CR 99-015666
The Honorable Margaret R. Mahoney, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent
Frutoso Zepeda Corral, Tucson
Petitioner
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Judge Andrew W. Gould and Chief Judge Diane M. Johnsen joined.
SWANN, Judge:
¶1 Frutoso Zepeda Corral seeks review of the trial court's order dismissing his second notice of post-conviction relief filed under Ariz. R. Crim. P. 32. We grant review but, for the reasons stated, deny relief.
¶2 In 2001, a jury convicted Corral of second-degree murder, aggravated assault, and misconduct involving weapons, and the trial court sentenced him to aggravated prison terms totaling forty years. We affirmed the convictions and sentences on direct appeal. State v. Corral, 1 CA-CR 01-0792 (Ariz. App. Oct. 8, 2002) (mem. decision).
¶3 In January 2003, Corral filed a timely notice of post-conviction relief. Appointed counsel thereafter gave notice that he could find no claims to be raised in a Rule 32 proceeding. Corral then filed a pro se petition for post-conviction relief, alleging claims of ineffective assistance of counsel, prosecutorial misconduct, witness perjury, and actual innocence. The trial court summarily dismissed the petition, ruling that Corral had failed to state a colorable claim for relief.
¶4 Ten years later, in September 2013, Corral filed a second notice of post-conviction relief in which he indicated an intent to raise a claim of newly discovered material facts. Specifically, he alleged that he was suffering from post-traumatic stress disorder (PTSD), that he had this condition at the time of his sentencing, and that if this condition had been known at that time it would have affected the outcome of his sentencing. The trial court summarily dismissed the notice, finding that Corral had failed to show why the alleged newly discovered facts could not have been produced earlier through reasonable due diligence as required by Rule 32.1(e)(2).
¶5 Corral now seeks review. We have jurisdiction under Ariz. R. Crim. P. 32.9(c). We review the summary dismissal of a post-conviction relief proceeding for abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006). We may uphold the trial court's ruling on any basis supported by the record. See State v. Robinson, 153 Ariz. 191, 199 (1987).
¶6 As the trial court correctly noted in its order, the notice of post-conviction relief at issue is both untimely and successive. Though a claim of newly
discovered material facts is not necessarily subject to preclusion under Rule 32.2(a), when such a claim is raised in an untimely notice of post-conviction relief, the notice "must set forth the substance of the specific exception and the reasons for not raising the claim . . . in a timely manner." Ariz. R. Crim. P. 32.2(b); see also Ariz. R. Crim. P. 32.1(e) (requiring as element of claim of newly discovered material facts that the defendant "exercised due diligence in securing the newly discovered material facts"). "If . . . meritorious reasons do not appear substantiating the claim and indicating why the claim was not stated . . . in a timely manner, the notice shall be summarily dismissed." Ariz. R. Crim. P. 32.2(b).
¶7 Corral does not explain in his petition for review how the trial court was incorrect in concluding that he had failed to show that the alleged newly discovered material facts could not have been discovered and presented earlier. The record reflects that both the abusive conduct that Corral alleged in his notice as the cause of his PTSD and the symptoms of the condition -- night terrors, severe headaches, medical problems and problems at school -- were known and presented to the trial court for consideration at the time of sentencing. The only "newly discovered fact" alleged by Corral is the labeling of his condition as PTSD, which was well recognized as a medical condition at the time of Corral's sentencing. Cf. State v. Bilke, 162 Ariz. 51, 53 (1989) (holding that diagnosis of PTSD in 1987 constituted colorable claim of newly discovered evidence because PTSD was not a recognized medical condition when sentencing occurred in 1974). The trial court reasonably could have found that Corral's PTSD diagnosis could have been presented at sentencing, or in the first post-conviction relief proceeding, through the exercise of due diligence. Accordingly, we find no abuse of discretion in the trial court's summary dismissal of the second notice of post-conviction relief, and we deny relief.