Opinion
No. 2 CA-CR 2017-0307-PR
01-26-2018
THE STATE OF ARIZONA, Respondent, v. JOSH ALBRITTON, Petitioner.
Josh Albritton, Tucson 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NOT FOR PUBLICATION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 Cochise County
No. CR201100236
The Honorable James L. Conlogue, Judge
REVIEW GRANTED; RELIEF GRANTED IN PART AND DENIED IN PART
Josh Albritton, Tucson
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 Josh Albritton seeks review of the trial court's orders summarily dismissing his request for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., and summarily denying his request for DNA testing of evidence from his trial. We will not disturb those orders unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). We grant review and partial relief.
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¶2 After a jury trial, Albritton was convicted of three counts of aggravated assault and eight counts of misconduct involving weapons. The trial court sentenced him to concurrent and consecutive prison terms totaling ninety years. We affirmed his convictions and sentences on appeal. State v. Albritton, No. 2 CA-CR 2013-0128, ¶ 1 (Ariz. App. Dec. 19, 2013) (mem. decision).
¶3 Albritton sought post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but found no colorable claims to raise under Rule 32. Although the trial court granted Albritton leave to file a pro se petition, he did not do so, and the court dismissed the proceeding in February 2015. Albritton did not seek review.
¶4 In March 2017, Albritton initiated a second Rule 32 proceeding, claiming his counsel had been ineffective and he had recently been diagnosed with post-traumatic stress disorder (PTSD), constituting newly discovered evidence. The trial court summarily dismissed the proceeding, noting Albritton's ineffective assistance claim could not be raised in an untimely proceeding, he had not provided any evidence supporting his claim of a recent PTSD diagnosis and, in any event, the diagnosis would not have changed the outcome of his trial or his sentence.
¶5 Albritton also filed a motion requesting that the state be ordered to test "all sharp objects originally used as evidence in this case" for the victim's DNA, claiming it would show he did not assault the victim. The trial court summarily denied that request, stating Albritton "cites no[] authority . . . in support of his motion and the Court is unaware of any such authority." This petition for review followed.
¶6 In his petition, Albritton repeats his claim of ineffective assistance and his claims based on his purported recent PTSD diagnosis. He does not, however, address the trial court's conclusion that he is not permitted to raise his claim of ineffective assistance in an untimely proceeding. See Ariz. R. Crim. P. 32.1(a), 32.4(a)(2)(A). Nor does he dispute the court's conclusion that awareness of his PTSD diagnosis would not have changed the proceeding's outcome. See Ariz. R. Crim. P. 32.1(e).
¶7 Instead, his argument essentially appears to be that he was unable to raise various claims of trial error and ineffective assistance previously because he was medicated and placed in solitary confinement "throughout the Trial, Direct Appeal, and 1st Rule 32." To the extent Albritton argues there was error at his trial, that claim cannot be raised in this untimely proceeding. Ariz. R. Crim. P. 32.4(a)(2)(A). And his assertion that his ability to raise his claims post-conviction has been limited is not cognizable under Rule 32 because it does not implicate his conviction or sentence but, rather, concerns only the alleged post-trial denial of his rights. See Ariz. R. Crim. P. 32.1.
¶8 Albritton also reasserts his request for DNA testing of items in his case. As we noted above, the trial court rejected this claim on the basis that it was unaware of any provision for post-conviction DNA testing. The court apparently overlooked A.R.S. § 13-4240 and Rule 32.12, Ariz. R. Crim. P., which allow a convicted felon to request, and the court to order, DNA testing of evidence if certain conditions are met. We therefore remand the case to the trial court to consider Albritton's motion under § 13-4240 and Rule 32.12.
¶9 Upon review, we grant relief in part and remand the case to the trial court for consideration of Albritton's motion for DNA testing under the appropriate authority. Relief is otherwise denied.