Opinion
2 CA-CR 2023-0055-PR
04-14-2023
The State of Arizona, Respondent, v. Arthur L. Vitasek, Petitioner.
Arthur L. Vitasek, Florence In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR2005030514001SE The Honorable David J. Palmer, Judge The Honorable Michael W. Kemp, Judge
Arthur L. Vitasek, Florence In Propria Persona
Presiding Judge Brearcliffe authored the decision of the Court, in which Judge Eckerstrom and Judge Kelly concurred.
MEMORANDUM DECISION
BREARCLIFFE, PRESIDING JUDGE
¶1 Petitioner Arthur Vitasek seeks review of the trial court's orders dismissing his petitions for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Ainsworth, 250 Ariz. 457, ¶ 1 (App. 2021) (quoting State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007)). Vitasek has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Vitasek was convicted of nineteen counts of sexual conduct with a minor, three counts of public indecency to a minor, three counts of child molestation, one count of attempted molestation of a child, and one count of continuous sexual abuse of a child. The trial court sentenced him to several aggravated terms of imprisonment, followed by eleven consecutive life sentences. This court affirmed his convictions and sentences on appeal but modified his presentence incarceration credit. State v. Vitasek, No. 1 CA-CR 12-0050 (Ariz. App. Feb. 9, 2017) (mem. decision). Vitasek thereafter sought and was denied post-conviction relief, and we denied relief on review. State v. Vitasek, No. 1 CA-CR 19-0419 PRPC (Ariz. App. Feb. 27, 2020) (mem. decision).
¶3 In September and October 2022, Vitasek filed documents seeking "leave of Court to amend his PCR to include" additional issues and requesting that the trial court "order missing trial records." In a ruling filed November 15, 2022, the court determined that whether these filings were viewed as motions to amend under Rule 32.9(d) or as a successive petition for post-conviction relief, Vitasek was not entitled to relief. Vitasek then filed another notice of post-conviction relief and a petition for special action in the trial court. On February 8, 2023, the court deemed these filings a "fifth Rule 32 proceeding" and dismissed the proceeding.
¶4 On review, Vitasek challenges the trial court's November and February rulings, contending the court abused its discretion "by refusing to obtain the missing trial transcripts" he had requested before dismissing the proceeding. We understand his argument to be that the transcripts of interviews with certain witnesses were redacted and that recordings of the interviews played at trial were not transcribed by the court reporter because the transcripts were made part of the record as well. But, he claims that neither he, "nor any Court, has obtained or reviewed these appellate records to determine if they meet the Rules requirements for use as substantive evidence." He therefore contends the court abused its discretion by declining to obtain the transcripts in this proceeding.
Vitasek does not address the trial court's rulings as to various other claims he raised. Any such claims are therefore waived. Ariz. R. Crim. P. 32.16(c)(2)(D); State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (defendant waived claim when he did not "develop the argument in any meaningful way" on review); State v. Rodriguez, 227 Ariz. 58, n.4 (App. 2010) (declining to address argument not raised in petition for review).
Vitasek's reliance on Rule 31.8, Ariz. R. Crim. P., is misplaced in this proceeding for post-conviction relief as that rule controls "The Record on Appeal."
¶5 In our decision on appeal, however, this court addressed Vitasek's claim that the trial court "erred by allowing the State to play the victims' recorded interviews for the jury and use the interviews as substantive evidence." Vitasek, No. 1 CA-CR 12-0050, ¶¶ 45-49. Specifically, we addressed the application of Rule 803(5), Ariz. R. Evid., to which Vitasek now cites. Id. Thus, as the trial court properly determined, Vitasek's claims as to the admissibility of the evidence are precluded. See Ariz. R. Crim. P. 32.2(a)(2).
¶6 Furthermore, to the extent his arguments can be construed as raising other claims of error in regard to the admission of evidence, the completeness of the appellate record, or ineffective assistance of counsel, such claims are also precluded as they were or could have been raised in previous proceedings. See Ariz. R. Crim. P. 32.2(a)(3). Therefore, the trial court properly denied Vitasek's request to provide transcripts. See Ariz. R. Crim. P. 32.8(b) (defendant entitled to only those transcripts trial court "deems necessary for resolving issues the defendant has specified in the notice" of post-conviction relief); State v. Drozd, 116 Ariz. 330, 332 (App. 1977); cf. Canion v. Cole, 210 Ariz. 598, ¶¶ 10-12, 18 (2005) (defendant has burden to show grounds within provision of post-conviction rules to obtain discovery).
¶7 We grant the petition for review, but deny relief.