Opinion
No. 2 CA-CR 2021-0007-PR
03-18-2021
THE STATE OF ARIZONA, Respondent, v. ROBERT FRANCIS LINDLEY JR., Petitioner.
Robert Lindley, Buckeye In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Maricopa County
No. CR1989009011
The Honorable Sally Schneider Duncan, Judge
REVIEW GRANTED; RELIEF DENIED
Robert Lindley, Buckeye
In Propria Persona
MEMORANDUM DECISION
Vice Chief Judge Staring authored the decision of the Court, in which Presiding Judge Espinosa and Judge Eckerstrom concurred. STARING, Vice Chief Judge:
¶1 Robert Lindley Jr. seeks review of the trial court's ruling summarily dismissing his successive petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Lindley has not shown such abuse here.
Our supreme court amended the post-conviction relief rules, effective January 1, 2020. Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019). "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, n.1 (App. 2020) (quoting Ariz. Sup. Ct. Order R-19-0012). "Because it is neither infeasible nor works an injustice here, we cite to and apply the current version of the rules" except where otherwise noted. Id.
¶2 After a jury trial, Lindley was convicted of five counts of child molestation and five counts of sexual conduct with a minor and sentenced to consecutive and concurrent prison terms, including six life terms. We affirmed his convictions and sentences, as modified, on appeal. State v. Lindley, Nos. 2 CA-CR 92-0759, 2 CA-CR 92-0760-PR (Ariz. App. Dec. 2, 1992) (consol. mem. decision). We also denied Lindley's petition for review of the denial of post-conviction relief. Id. In a delayed appeal based on the ineffective assistance of appellate counsel, we again affirmed Lindley's convictions and sentences after rejecting his claim that the trial court had erred by not striking certain jurors for cause. State v. Lindley, No. 1 CA-CR 00-0656 (Ariz. App. Aug. 6, 2002) (mem. decision). Lindley has sought and been denied post-conviction relief several times before this proceeding.
¶3 In August 2019, Lindley again sought post-conviction relief, asserting his trial, post-conviction, and appellate counsel had been ineffective, the state had engaged in misconduct and presented false testimony, the jury instructions given at his trial were vague, and his sentences were improper. Lindley also identified some items as newly discovered evidence under Rule 32.1(e), including amendments to the post-conviction rules regarding DNA testing and "attorney records." Lindley further sought post-conviction DNA testing and claimed he was actually innocent based on what he believed that testing would show.
¶4 The trial court summarily rejected the bulk of Lindley's claims. It ordered the state to respond, however, to Lindley's request for DNA testing and his claim of actual innocence. After receiving that response and Lindley's reply, the court dismissed the proceeding without further comment. This petition for review followed.
¶5 On review, Lindley first complains the trial court gave "no reason" for denying him relief on his post-conviction DNA testing request and actual innocence claim. But nothing in our post-conviction rules requires the court to do so when summarily rejecting a claim. Ariz. R. Crim. P. 32.11(a). In contrast, the court is required to provide factual findings and legal conclusions only when ruling after a hearing. Ariz. R. Crim. P. 32.13(d).
¶6 Lindley next contends the trial court may have applied "old statutes" rather than former Rule 32.12 in rejecting his request for DNA testing. But there is no material difference between former Rule 32.12 and the applicable statute. See A.R.S. § 13-4240; Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017) (former Rule 32.12). Both permit a defendant to request DNA testing, give the court discretion to order such testing if certain conditions are met, and require the court to order such testing if additional conditions are met. Specifically, for testing to be required, there must be a reasonable probability "the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through deoxyribonucleic acid testing." § 13-4240(B)(1); see Ariz. Sup. Ct. Order R-17-0002 (32.12(d)(1)(A)). Additionally, the evidence must exist in a condition that allows for testing and must not have been previously subjected "to the testing that is now requested and that may resolve an issue not previously resolved by the previous testing." § 13-4240(B)(2), (3); see Ariz. Sup. Ct. Order R-17-0002 (32.12(d)(1)(B), (C)). Lindley does not argue on review that the court otherwise erred in denying his request for DNA testing beyond his cursory and undeveloped claims that he "has a right to prove his innocence" and that DNA testing would demonstrate that innocence. Accordingly, we do not further address this issue. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013).
Effective January 1, 2020, the post-conviction DNA testing provision of Rule 32 was moved to Rule 32.17. Ariz. Sup. Ct. Order R-19-0012. It modifies the mandatory testing requirement to include those situations where the "verdict or sentence would have been more favorable." Ariz. R. Crim. P. 32.17(d)(1)(A). Lindley does not assert he is entitled to DNA testing on this basis. --------
¶7 Lindley also asserts the trial court failed to address his claim that the state did not disclose exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83 (1963). He claims an evidentiary hearing had been ordered on that claim in a 2014 post-conviction proceeding but was "wrongfully cancelled by another judge." He refers to a ruling dated February 11, 2015, in which the court set an evidentiary hearing to address whether the state had offered a plea and whether counsel had adequately advised Lindley about that plea. The hearing was vacated, and the case was subsequently assigned to another judge, who summarily dismissed Lindley's notice and petition. Lindley apparently did not seek review of that ruling in this court, and the time to do so has long passed. See Ariz. R. Crim. P. 32.16(a)(1). And, insofar as Lindley argues the court otherwise erred in dismissing his claims, he does not develop any meaningful argument in his petition for review. Thus, we do not address his claims further. See Stefanovich, 232 Ariz. 154, ¶ 16.
¶8 We grant review but deny relief.