Opinion
No. 2 CA-CR 2014-0049-PR
05-09-2014
THE STATE OF ARIZONA, Respondent v. HAROLD GLEN OVERTON, Petitioner.
William G. Montgomery, Maricopa County Attorney By Susan L. Luder, Deputy County Attorney, Phoenix Counsel for Respondent Harold Glen Overton, Florence 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Maricopa County
No. CR2006128537001DT
The Honorable Roland J. Steinle, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By Susan L. Luder, Deputy County Attorney, Phoenix
Counsel for Respondent
Harold Glen Overton, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Harold Overton petitions this court for review of the trial court's order summarily dismissing his petition for postconviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Overton has not met his burden of demonstrating such abuse here.
¶2 In 2007, Overton pled guilty to two counts of attempted sexual exploitation of a minor under the age of fifteen and one count of sexual exploitation of a minor under the age of fifteen. The trial court sentenced him to a ten-year prison term for sexual exploitation to be followed by concurrent terms of lifetime probation on the two attempted sexual exploitation convictions. Approximately a year later, Overton filed two petitions for post-conviction relief raising various claims, including newly discovered evidence, specifically that the victim—his granddaughter—had told a Child Protective Services caseworker that Overton "didn't do anything ever to hurt her" and that "her mom . . . put her up to everything, and told her what to say." The trial court summarily denied relief, and we denied review of that ruling. State v. Overton, No. 1 CA-CR 09-0093 PRPC (order filed Feb. 25, 2010).
¶3 In 2012, Overton filed a notice of post-conviction relief stating he wished to raise a claim of newly discovered evidence and attaching a letter purportedly written by his granddaughter stating her mother had forced her to accuse him. The trial court appointed counsel, who filed a notice stating he had reviewed the record and "ha[d] not located any colorable claims for relief" to raise in post- conviction proceedings. Overton then filed a pro se petition attaching the letter and explaining he had only pled guilty to "protect[]" his granddaughter from testifying. The trial court summarily dismissed the petition, noting that Overton had not provided an affidavit or any other proof of the letter's authorship, nor had he shown that "evidence of any victim coaching or recantation could not have been discovered before he entered his plea agreement."
¶4 On review, Overton repeats his claim of newly discovered evidence, attaching several documents he did not provide to the trial court purporting to support the victim's recantation. We do not consider evidence not first presented to the trial court. See Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review shall contain "[t]he issues which were decided by the trial court and which the defendant wishes to present" for review); State v. Zuck, 134 Ariz. 509, 512, 658 P.2d 162, 165 (1982) (refusing to consider affidavits of counsel attached to petition for review to supreme court "as an attempt to create new evidence"). And we agree with the trial court that Overton's claim warrants summary dismissal.
¶5 A claim of newly discovered material facts made pursuant to Rule 32.1(e) may be raised in an untimely proceeding like this one. See Ariz. R. Crim. P. 32.4(a). A defendant presents a colorable claim of newly discovered evidence pursuant to Rule 32.1(e) if (1) the evidence appears on its face to have existed at the time of trial but was discovered after trial; (2) the motion alleges facts from which the court could conclude the defendant was diligent in discovering the facts and bringing them to the court's attention; (3) the evidence is not simply cumulative or impeaching; (4) the evidence is relevant to the case; and (5) the evidence is such that it would likely have altered the verdict, finding, or sentence if known at the time of trial. State v. Bilke, 162 Ariz. 51, 52-53, 781 P.2d 28, 29-30 (1989).
¶6 Overton has not demonstrated the required diligence in bringing the victim's recantation to the court's attention. In his first post-conviction proceeding, he raised a similar claim but failed to adequately support it and, as he acknowledges in his petition for review, the letter "was not the first or only time [the victim] recanted." Nor did he explain to the trial court why he could not have obtained the letter earlier.
¶7 Moreover, by pleading guilty, Overton waived all non-jurisdictional defects unrelated to the voluntariness of his plea. See State v. Quick, 177 Ariz. 314, 316, 868 P.2d 327, 329 (App. 1993). As this court has observed, Rule 32.1(e) "is applied quite restrictively to overturn guilty pleas" because, in part, a person who is "'not manifestly guilty of the crime charged'" may opt to plead guilty in the face of "'a distinct possibility of a finding of guilt'" to avoid the more severe sentence that could result from a jury trial. State v. Fritz, 157 Ariz. 139, 140, 755 P.2d 444, 445 (App. 1988), quoting State v. McFord, 125 Ariz. 377, 379, 609 P.2d 1077, 1079 (App. 1980). Overton does not assert that his guilty plea was involuntary, nor does he assert that the victim's purported recantation is sufficient to establish a claim of actual innocence pursuant to Rule 32.1(h). Indeed, such evidence is "inherently unreliable." State v. Hickle, 133 Ariz. 234, 238, 650 P.2d 1216, 1220 (1982). Thus, Overton has not demonstrated the trial court erred in summarily rejecting his petition.
In Fritz, we observed that a claim under Rule 32.1(e) is more appropriate when the defendant has pled no contest instead of guilty because, in such situations, the strength of the state's case becomes "all-important" as the "primary inducement for the plea." 157 Ariz. at 140-41, 755 P.2d at 445-46 (permitting withdrawal from no-contest plea based on victim recantation). Because Overton pled guilty, that reasoning does not apply here.
¶8 Overton also raises two claims not raised below, specifically that the trial court erred in rejecting a "motion concerning ineffective assistance of counsel" he apparently had filed before pleading guilty and that his terms of lifetime probation are improper. Even assuming these claims could be raised in an untimely proceeding, we do not address arguments raised for the first time on review. See Ariz. R. Crim. P. 32.9(c)(1)(ii); State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980).
¶9 For the reasons stated, although we grant review, relief is denied.