Opinion
No. 2 CA-CR 2018-0148-PR
09-26-2018
THE STATE OF ARIZONA, Respondent, v. CLYDE ROBERT HOLLINGSHEAD, Petitioner.
Clyde R. Hollingshead, 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NOT FOR PUBLICATION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. CR045621
The Honorable Deborah Bernini, Judge
REVIEW GRANTED; RELIEF DENIED
Clyde R. Hollingshead, Florence
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Eppich concurred.
STARING, Presiding Judge:
¶1 Clyde Hollingshead seeks review of the trial court's order summarily denying 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). Hollingshead has not shown such abuse here.
¶2 After a jury trial held in his absence, Hollingshead was convicted of six counts of sexual assault of a minor under the age of fifteen, two counts of sexual abuse, two counts of sexual abuse of a minor under fifteen, and one count of sexual conduct with a minor under fifteen. The trial court sentenced him to concurrent and consecutive prison terms, the longest being life without the possibility of release for thirty-five years. We affirmed his convictions and sentences on appeal. State v. Hollingshead, No. 2 CA-CR 95-0320 (Ariz. App. Sept. 30, 1996) (mem. decision).
¶3 Hollingshead sought and was granted post-conviction relief regarding sentencing and was resentenced for his convictions of sexual abuse of a minor under fifteen and sexual conduct of a minor under fifteen. We affirmed the new sentences on appeal, but vacated a criminal restitution order improperly imposed at the time of sentencing. State v. Hollingshead, No. 2 CA-CR 2016-0308, ¶¶ 3-4 (Ariz. App. Jan. 27, 2017) (mem. decision). Following his resentencing, Hollingshead sought and was denied post-conviction relief, and Hollingshead did not seek review of the trial court's decision.
¶4 In 2017, Holllingshead filed a petition for writ of habeas corpus, arguing his trial and appellate counsel were ineffective for failing to raise claims related to his trial having been conducted in his absence. Properly characterizing Hollingshead's filing as a petition for post-conviction relief pursuant to Rule 32.3, the trial court summarily dismissed the proceeding, noting that Hollingshead had not identified any claim raisable in a successive proceeding. Hollingshead then filed a "petition for reconsideration" asserting (as he had for the first time in his reply to the
state's response) that he was raising his claim pursuant to Rule 32.1(e) as a claim of newly discovered evidence. The trial court denied Hollingshead's request for reconsideration, and this petition for review followed.
¶5 On review, Hollingshead again asserts his claim is raised pursuant to Rule 32.1(e) because "it was not known to [him] until now" and, thus, "is not time barred or precluded." The trial court is not required to consider claims first raised in a reply. See State v. Lopez, 223 Ariz. 238, ¶ 7 (App. 2009). And, in any event, Hollingshead's claim fails as a matter of law. A claim of newly discovered material facts does not encompass newly discovered legal theories, but instead is limited to facts relevant to the verdicts or sentences. See Ariz. R. Crim. P. 32.1(e); see also State v. Saenz, 197 Ariz. 487, ¶ 7 (App. 2000) (to establish claim of newly discovered evidence, 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"). Hollingshead's belated claim cannot be raised in this untimely proceeding. See Ariz. R. Crim. P. 32.4(a)(2)(A).
¶6 We grant review but deny relief.