Opinion
2 CA-CR 2023-0022-PR
02-27-2023
The State of Arizona, Respondent, v. Douglas Alan Smith, Petitioner.
Barton & Storts, Tucson By Brick P. Storts III Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR1995007070 The Honorable Jennifer Ryan-Touhill, Judge
Barton & Storts, Tucson By Brick P. Storts III Counsel for Petitioner
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Gard concurred.
MEMORANDUM DECISION
VÁSQUEZ, CHIEF JUDGE
¶1 Douglas Smith seeks review of the trial court's ruling summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Martinez, 226 Ariz. 464, ¶ 6 (App. 2011). Smith has not met his burden of establishing such abuse here.
¶2 After a 1998 jury trial, Smith was convicted of premeditated first-degree murder, first-degree burglary, theft of a credit card, and theft. The trial court sentenced him to life in prison without the possibility of release for twenty-five years for murder, followed by consecutive prison terms totaling thirty-seven years for the other offenses. His convictions and sentences were affirmed on appeal. State v. Smith, No. 1 CA-CR 98-0709 (Ariz. App. Jan. 25, 2000) (mem. decision). Smith thereafter sought post-conviction relief, but the trial court dismissed the proceeding after Smith had failed to file a petition.
¶3 In June 2022, Smith filed a successive petition for post-conviction relief, asserting claims under Rule 32.1(a), (e), and (g). His Rule 32.1(a) and (e) claims were related. He argued the prosecutor at his trial had engaged in misconduct by "disparaging] the expert witnesses," "inviting [the] jurors to place themselves in the victim's position," "disparaging defense counsel," "vouching] for his case by injecting facts not in evidence," misstating the law, and introducing "hearsay evidence as substantive evidence." And he maintained this court's determination that the same prosecutor had engaged in misconduct in State v. Arias, 248 Ariz. 546 (App. 2020), constituted "newly discovered evidence relating to the misconduct," such that his claim was now "actionable." As to Rule 32.1(g), Smith argued that State v. Thompson, 204 Ariz. 471 (2003), constituted a significant change in the law as to the instruction for premediated murder.
¶4 In August 2022, the trial court summarily dismissed the petition. It determined that Smith's claim of prosecutorial misconduct under Rule 32.1(a) was precluded. The court also rejected his Rule 32.1(e) claim, explaining that neither citations to the record nor legal authorities "qualify as new facts" and that Smith had "failed to demonstrate reasonable diligence in identifying and raising his new arguments." As to his Rule 32.1(g) claim, the court determined the "argument fails" because Smith had not established that Thompson constituted a significant change in the law applicable to his case. Citing Rule 32.2(b), the court concluded that Smith had failed to "assert substantive claims and adequately explain the reasons for their untimely assertion." This petition for review followed.
¶5 On review, Smith repeats his claims of prosecutorial misconduct, newly discovered material facts, and a significant change in the law. He maintains the trial court erred by summarily dismissing his petition without considering the merits of his claims and prior to the state filing a response. He further argues the court, "in essence, did the work for the [s]tate."
¶6 Generally, a "defendant is precluded from relief under Rule 32.1(a) based on any ground . . . finally adjudicated on the merits in an appeal" or "waived at trial or on appeal, or in any previous post-conviction proceeding." Ariz. R. Crim. P. 32.2(a)(2), (3). "Claims for relief based on Rule 32.1(b) through (h) are not subject to preclusion under Rule 32.2(a)(3), but they are subject to preclusion under Rule 32.2(a)(2)." Ariz. R. Crim. P. 32.2(b). "However, when a defendant raises a claim that falls under Rule 32.1(b) through (h) in a successive or untimely post-conviction notice, the defendant must explain the reasons for not raising the claim in a previous notice or petition, or for not raising the claim in a timely manner." Id. If the defendant fails to do so, the court may summarily dismiss the proceeding. Id. The court may determine that an issue is precluded "[a]t any time." Id.
¶7 Here, the trial court properly found Smith's Rule 32.1(a) claim precluded under Rule 32.2(a)(2) because Smith raised it on direct appeal. See Smith, No. 1 CA-CR-98-0709, at 16-20. In addition, the court properly found that, to the extent Smith presented new claims of prosecutorial misconduct, those claims were precluded under Rule 32.2(a)(3). Turning to the Rule 32.1(e) and (g) claims, the court considered the merits - contrary to Smith's assertion otherwise - and found they did not amount to "substantive claims." The court ultimately relied on Rule 32.2(b) in concluding that summary dismissal was appropriate because Smith had not raised appropriate claims or "adequately explained] the reasons for their untimely assertion." We cannot say the court abused its discretion. See Martinez, 226 Ariz. 464, ¶ 6. Indeed, the court clearly identified Smith's claims and correctly resolved them in a thorough, well-reasoned minute entry, which we adopt. See State v. Whipple, 177 Ariz. 272, 274 (App. 1993) (when trial court has correctly ruled on issues raised "in a fashion that will allow any court in the future to understand the resolution[, n]o useful purpose would be served by this court rehashing the trial court's correct ruling in a written decision").
¶8 Accordingly, we grant review but deny relief.