Opinion
No. 2 CA-CR 2020-0165-PR
10-08-2020
THE STATE OF ARIZONA, Respondent, v. WILLIAM WESTLEY DUNCAN, Petitioner.
COUNSEL Matthew J. Smith, Mohave County Attorney By James M. Schoppmann, Chief Deputy County Attorney, Kingman Counsel for Respondent William W. Duncan, Safford 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NOT FOR PUBLICATION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 Mohave County
No. CR98001153
The Honorable Rick A. Williams, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Matthew J. Smith, Mohave County Attorney
By James M. Schoppmann, Chief Deputy County Attorney, Kingman
Counsel for Respondent William W. Duncan, Safford
In Propria Persona
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred. ECKERSTROM, Judge:
¶1 Petitioner William Duncan seeks review of the trial court's order summarily dismissing his notice of 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). Duncan has not sustained his burden of establishing such abuse here.
Effective January 1, 2020, our supreme court amended the post-conviction relief rules. Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019). The amendments apply to all cases pending on the effective date unless a court determines that "applying the rule or amendment would be infeasible or work an injustice." Id. Because it is neither infeasible nor works an injustice in this case, we cite to and apply the current version of the rules. State v. Mendoza, 249 Ariz. 180, n.1 (App. 2020).
¶2 Following a jury trial in 2000, Duncan was convicted of first-degree murder. Upon resentencing, the trial court sentenced Duncan to a prison term of natural life without the possibility of release. We affirmed Duncan's conviction and sentence on his first appeal, State v. Duncan, No. 1 CA-CR 01-0113, (Ariz. App. Feb. 28, 2002) (mem. decision), remanded for further post-conviction proceedings on his petition for review of the court's denial of his first petition for post-conviction relief, State v. Duncan, Nos. 1 CA-CR 04-0173-PRPC, 1 CA-CR 04-0178 (Ariz. App. Oct. 18, 2005) (consol. mem. decision), reaffirmed his sentence on appeal after resentencing, id., denied review on the petition for review of his second petition for post-conviction relief, State v. Duncan, No. 1 CA-CR 08-0801-PRPC (Ariz. App. Dec. 8, 2009) (order), and denied relief on the petition for review of his third petition for post-conviction relief, State v. Duncan, No. 2 CA-CR 2014-0125-PR (Ariz. App. July 2, 2014) (mem. decision).
The trial court imposed the same sentence when it resentenced Duncan following its partial grant of post-conviction relief.
¶3 In August 2019, Duncan filed a pro se notice of post-conviction relief, stating he was entitled to an evidentiary hearing based on newly discovered evidence pursuant to Rule 32.1(e), Ariz. R. Crim. P. Duncan argued he was entitled to be resentenced because several Tennessee misdemeanor and felony offenses, filed in 1997, had been dismissed in July 2019, thereby nullifying the trial court's finding at sentencing that he had committed the underlying offense while on release from "the state department of corrections, a law enforcement agency or a county or city jail" (the F7 aggravator).
See former A.R.S. § 13-703(F)(7), 2001 Ariz. Sess. Laws, ch. 260, § 1. --------
¶4 The trial court summarily dismissed Duncan's notice, finding "[t]he outcome of the case in which release conditions were imposed is irrelevant. The dismissal of charges twenty-two years after the fact is irrelevant." The court further concluded the 2019 dismissals did not negate the "F7 aggravator" findings made at sentencing. Cf. State v. Mount, 149 Ariz. 394, 395-96 (App. 1986) (defendant's sentence correctly enhanced on evidence instant offense committed while on release for pending felony charge in another matter, even though that charge later dismissed). The court thus concluded Duncan had "not present[ed] any material issues of fact or law that would entitle him to relief." This petition for review followed.
¶5 On review, Duncan reasserts he is entitled to be resentenced because the sentencing judge "was not aware that [the Tennessee] charges were dismissed," which, as he acknowledges, did not occur until 2019. He maintains the trial court mistakenly found the dismissal of the charges in 2019 irrelevant, contending that, because he was not ultimately convicted in those matters, the sentencing judge improperly considered them when it found the F7 aggravator. Finally, he insists that because the court did not expressly find his claim precluded, it instead had "admit[ted] new evidence exists," apparently suggesting the court acknowledged there was newly discovered evidence under Rule 32.1(e).
¶6 To establish a claim of newly discovered material facts under Rule 32.1(e), a defendant must show "that the evidence was discovered after trial although it existed before trial; that it could not have been discovered and produced at trial through reasonable diligence; that it is neither cumulative nor impeaching; that it is material; and that it probably would have changed the verdict" or sentence. State v. Saenz, 197 Ariz. 487, ¶ 7 (App. 2000). To be entitled to an evidentiary hearing, Duncan must have made a "colorable claim"—that is, he must have "alleged facts which, if true, would probably have changed" the outcome of his case. State v. Amaral, 239 Ariz. 217, ¶¶ 10-12 (2016) (emphasis omitted).
¶7 Notably, one of the requirements for newly discovered evidence is that it was in existence at the time of trial but not discovered until after trial. State v. Bilke, 162 Ariz. 51, 52 (1989) ("evidence must appear on its face to have existed at the time of trial but be discovered after trial"). By Duncan's own admission, the evidence he maintains is newly discovered "did not exist until July 17th, 2019." Duncan has not explained how evidence that did not exist until well after his trial can constitute newly discovered evidence. Therefore, we conclude the trial court correctly determined the evidence was not newly discovered under Rule 32.1(e), and that it did not abuse its discretion by summarily dismissing his notice.
¶8 Accordingly, we grant review, but deny relief.