Opinion
No. 2 CA-CR 2013-0445-PR
01-07-2014
THE STATE OF ARIZONA, Respondent, v. BRYAN NATHANIEL JENKINS, Petitioner.
William G. Montgomery, Maricopa County Attorney By E. Catherine Leisch, Deputy County Attorney, Phoenix Counsel for Respondent Bryan N. Jenkins, Buckeye 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Maricopa County
No. CR2005124753001DT
The Honorable Roger E. Brodman, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By E. Catherine Leisch, Deputy County Attorney, Phoenix
Counsel for Respondent
Bryan N. Jenkins, Buckeye
In Propria Persona
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred.
ECKERSTROM, Judge:
¶1 Bryan Jenkins petitions this court for review of the trial court's order 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 clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Jenkins has not met his burden of demonstrating such abuse here.
¶2 Jenkins was convicted after a jury trial of possession of a narcotic drug for sale, possession of marijuana, and possession of a dangerous drug and was sentenced to concurrent prison terms, the longest of which was 15.75 years. We affirmed his convictions and sentences on appeal. State v. Jenkins, No. 1 CA-CR 08-0873 (memorandum decision filed Dec. 8, 2009). Jenkins filed a notice of post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but found "no good faith basis in fact and/or law for post-conviction relief."
¶3 Jenkins then filed a pro se petition for post-conviction relief claiming his trial counsel had been ineffective for failing to adequately investigate relevant facts or to raise certain arguments related to a motion to suppress, and for causing various "unnecessary delays" throughout the proceedings. He further claimed the trial court had erred in denying his trial motion, made after he waived his right to counsel and proceeded pro se, asking to present new evidence related to the suppression motion. He also suggested the state had committed misconduct by "continually object[ing]" to his pro se attempts to introduce what he describes as "new evidence" related to the motion to dismiss.
¶4 Jenkins also asserted his trial counsel had been ineffective at sentencing for failing to present mitigating evidence about his "character history, work/employment history, and financial history." Finally, he asserted his appellate counsel had been ineffective for failing to raise various arguments on appeal, including that he should not have been required to wear a "stun belt" during trial, that the trial court erred in rejecting his challenge to the jury panel based on Batson v. Kentucky, 476 U.S. 79 (1986), and that the court erred in rejecting his motion for mistrial based on purported confrontation clause violations. The court summarily denied relief and dismissed the proceeding. Except for the claims of ineffective assistance of counsel, the court found all of Jenkins's claims precluded because they could have been raised on appeal. The court then evaluated and rejected each claim of ineffective assistance of counsel. This petition for review followed the court's denial of Jenkins's motion for rehearing and "motion to amend pleadings."
¶5 On review, Jenkins reurges his claims and asserts the trial court erred because it relied, in part, on our decision on appeal concluding there was no error in the denial of Jenkins's motion to suppress. He argues the trial court instead was required to evaluate the propriety of that ruling in light of "newly discovered material facts" that were not before this court on appeal. But Jenkins did not raise a claim of newly discovered evidence pursuant to Rule 32.1(e). He instead claimed the trial court had erred in rejecting his motion below to consider supposed new facts in reconsidering its denial of his motion to suppress. That claim is precluded because it could have been raised on appeal. See Ariz. R. Crim. P. 32.2(a)(3). And, in any event, the trial court found the additional evidence would not have changed the outcome and thus that Jenkins had not demonstrated prejudice caused by counsel's purported failure to investigate certain matters related to the motion to suppress. See State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006) (colorable claim of ineffective assistance of counsel requires showing counsel's performance deficient and prejudicial).
¶6 Beyond generally arguing the trial court erred in rejecting his claims, Jenkins identifies no specific error in the court's
reasoning and instead merely restates his claims. We have reviewed the record and the court's ruling summarily denying Jenkins's petition for post-conviction relief and conclude the court thoroughly evaluated and correctly rejected Jenkins's arguments. We therefore adopt the court's ruling. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993).
¶7 Although review is granted, relief is denied.