Opinion
No. 2 CA-CR 2018-0029-PR
06-29-2018
THE STATE OF ARIZONA, Respondent, v. MARK ANTONIO SLYTER, Petitioner.
Mark Antonio Slyter, 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Pima County
No. CR20122872001
The Honorable Deborah Bernini, Judge
REVIEW GRANTED; RELIEF DENIED
Mark Antonio Slyter, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred.
ESPINOSA, Judge:
¶1 Petitioner Mark Slyter seeks review of the trial court's order 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). We find no such abuse here.
¶2 After pleading guilty, Slyter was convicted in September 2012 of sexual assault and kidnapping, domestic violence offenses, and sentenced to consecutive, aggravated and presumptive prison terms totaling fifteen years. Slyter filed a timely, notice of post-conviction relief, and after appointed counsel could find no issues to raise under Rule 32, Slyter failed to file a pro se petition, despite the trial court having granted him an extension to do so. The court thus dismissed the first Rule 32 proceeding in September 2013.
¶3 In December 2017, Slyter filed a successive, untimely Rule 32 petition raising a claim based on newly discovered evidence asserting he had been denied his right to a preliminary hearing, and that trial counsel had been ineffective by failing to raise this claim. See Ariz. R. Crim. P. 32.1(e). The trial court summarily dismissed Slyter's petition on the ground that his claim, "even if valid, should have been raised in his first, timely Notice and/or Petition for Post[-]Conviction Relief." The court also found Slyter had "not indicated what specific exception to the rules would allow a second, successive petition." This petition for review followed.
¶4 On review, Slyter argues that, as a "laym[a]n in law," he was "unaware of the fact that his constitutional right to a preliminary hearing was being violated," and reasserts that counsel was ineffective by failing to raise this claim. To be entitled to relief on a claim of newly discovered evidence, a defendant must first demonstrate the evidence is, in fact, newly discovered. See State v. Serna, 167 Ariz. 373, 374 (1991) (describing five elements of successful newly discovered evidence claim). Other than asserting, without legal or factual support, that his claim is newly
discovered because "it pertains to a sentencing subsequent to a guilty plea," and that he "exercised due dil[]igence in securing the newly discovered material facts," Slyter has failed to establish such a claim. Even assuming such information could constitute newly discovered evidence, Slyter has not explained why, at the very least, he could not raise this claim in his first Rule 32 proceeding. Moreover, Slyter is incorrect that "newly discovered evidence is not needed to be proved herein." An untimely notice of post-conviction relief may only raise claims pursuant to Rule 32.1(d) through (h). See Ariz. R. Crim. P. 32.4(a)(2)(A).
¶5 Additionally, Slyter's claim of ineffective assistance of counsel falls under Rule 32.1(a). See State v. Petty, 225 Ariz. 369, ¶ 11 (App. 2010). Not only was he barred from raising it in an untimely post-conviction proceeding like this one, see Rule 32.1(a) and 32.4(a)(2)(A), Rule 32.1(e) does not contemplate a claim of newly discovered evidence of ineffective assistance of counsel, and is instead restricted to "newly discovered material facts . . . [that] probably would . . . change[] the verdict or sentence." Finally, although we might disagree with the trial court that Slyter did not identify a specific exception that would permit him to file a successive petition, the court correctly dismissed his petition because he did not provide support for such a claim. Cf. State v. Oakley, 180 Ariz. 34, 36 (App. 1994) (appellate court "will affirm the trial court when it reaches the correct result even though it does so for the wrong reasons").
¶6 Accordingly, although we grant review, relief is denied.