Opinion
No. 2 CA-CR 2014-0243-PR
08-13-2014
THE STATE OF ARIZONA, Respondent, v. SALVADORE SANCHEZ, Petitioner.
CONUSEL William G. Montgomery, Maricopa County Attorney By Arthur Hazelton, Deputy County Attorney, Phoenix Counsel for Respondent Salvadore Sanchez, 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NOT FOR PUBLICATION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. CR2010116440001DT
The Honorable Susanna C. Pineda, Judge
REVIEW GRANTED; RELIEF DENIED
CONUSEL
William G. Montgomery, Maricopa County Attorney
By Arthur Hazelton, Deputy County Attorney, Phoenix
Counsel for Respondent
Salvadore Sanchez, Florence
In Propria Persona
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Judge Espinosa and Judge Vásquez concurred.
ECKERSTROM, Chief Judge:
¶1 Salvadore Sanchez seeks review of the trial court's order summarily dismissing his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We grant review but deny relief.
¶2 Sanchez pled guilty to sexual conduct with a minor and attempted molestation of a child. The plea agreement stipulated that Sanchez would be sentenced to at least a twenty-year prison term for sexual conduct with a minor. The trial court sentenced him to a twenty-year prison term for that count, and suspended the imposition of sentence on the attempted molestation count, imposing a lifetime term of probation.
¶3 Sanchez filed an untimely notice of post-conviction relief, but the trial court nevertheless granted relief pursuant to Rule 32.1(f), allowing the delayed post-conviction proceeding. Appointed counsel filed a notice stating he had reviewed the record but had been "unable to find any claims for relief to raise in post-conviction relief proceedings." Sanchez then filed a pro se petition, arguing that a photograph of the victim's genitalia was newly discovered evidence relevant to his sentencing because it showed "there wasn't any injury to the [victim's] vagina." In his reply to the state's response, he additionally claimed the state had been required to disclose the photograph pursuant to Rules 15.1 and 26.8(b), Ariz. R. Crim. P.
¶4 The trial court dismissed the petition, concluding the evidence was not newly discovered because the presentence report made clear there had been no vaginal injury and, in any event, the photograph was merely cumulative. The court did not address the discovery claim raised in Sanchez's reply. This petition for review followed.
¶5 On review, Sanchez repeats his discovery claim, again arguing the state failed to disclose the photograph and "to inform the court" that "there wasn't any injury to the victim['s] vagina," thereby violating his due process rights. He does not repeat his assertion that the photograph constituted newly discovered evidence. But the trial court did not address Sanchez's discovery claim. Nor was it required to do so, because Sanchez raised it for the first time in his reply to the state's response. See State v. Lopez, 223 Ariz. 238, ¶ 7, 221 P.3d 1052, 1054 (App. 2009) (trial court need not consider issues first raised in petitioner's reply). We likewise will not consider this issue on review. See Ariz. R. Crim. P. 32.9(c) (permitting appellate court to "review . . . the actions of the trial court"; petition for review limited to "issues which were decided by the trial court").
¶6 For the reasons stated, we grant review but deny relief.