Opinion
No. 2 CA-CR 2014-0033-PR
06-05-2014
THE STATE OF ARIZONA, Respondent, v. JACK DAVID JEWITT, Petitioner.
Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent Jack David Jewitt, Winslow 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NOT FOR PUBLICATION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 Pima County
No. CR044112
The Honorable Catherine M. Woods, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent
Jack David Jewitt, Winslow
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Vásquez and Judge Brammer concurred. KELLY, Presiding Judge:
The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 In this petition for review, petitioner Jack Jewitt challenges the trial court's order dismissing his notice of postconviction relief pursuant to Rule 32, Ariz. R. Crim. P., and denying his motion for reconsideration. We will not disturb the court's ruling unless it clearly abused its discretion in determining whether post-conviction relief is warranted. See State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006); State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Jewitt has not sustained his burden of establishing such abuse here.
¶2 When Jewitt was fourteen years old, he and his twenty-year-old companion David Trostle abducted the victim from a Tucson shopping mall, taking her car; Trostle sexually assaulted the victim and then fatally shot her. Jewitt was prosecuted as an adult and convicted after a jury trial of first-degree murder, armed robbery, kidnapping and theft by control. The trial court sentenced Jewitt to concurrent prison terms that included a natural-life term for first-degree murder. The convictions and sentences were affirmed on appeal, State v. Jewitt, No. 2 CA-CR 94-0351, 24 (memorandum decision filed Jan. 31, 1996), and this court denied relief in Jewitt's petition for review of the denial of his first petition for post-conviction relief, State v. Jewitt, No. 2 CA-CR 99-0193-PR, ¶ 9 (memorandum decision filed Jan. 25, 2000). It appears he sought and was denied post-conviction relief again in September 2006 and March 2007.
¶3 In July 2013, Jewitt filed a form notice of post-conviction relief, checking the spaces that indicated his intent to raise claims of ineffective assistance of counsel, a significant change in the law, Ariz. R. Crim. P. 32.1(g), and actual innocence, Ariz. R. Crim. P. 32.1(h). In a different portion of the notice, he specified that Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012), and Graham v. Florida, 560 U.S. 48 (2010), were the purported changes in the law to which he referred, but he did not specify any facts that would support other claims.
¶4 The trial court identified the claims Jewitt had indicated he wished to raise and correctly concluded the notice was subject to summary dismissal. See Ariz. R. Crim. P. 32.2(b). The court set forth the bases for its conclusion in a thorough, well-reasoned order. The court found, inter alia, that any claim of ineffective assistance of counsel was untimely and precluded, see Ariz. R. Crim P. 32.2, that neither Miller nor Graham would entitle him to relief if applicable, that Jewitt had failed to state why he had not raised his claim of actual innocence previously, and that he failed to state facts substantiating that claim, see Ariz. R Crim. P. 32.2(b). The court also denied Jewitt's request for appointed counsel in this post-conviction proceeding, noting counsel had been appointed to represent him in a prior Rule 32 proceeding. Jewitt then filed a motion for rehearing in which he argued he was entitled to relief under Miller and maintained he required the assistance of counsel to help develop that claim, as well as the claim he had received ineffective assistance of counsel in the 1998 post-conviction proceeding. The court denied that motion.
¶5 In his petition for review, Jewitt contends the trial court erred by dismissing the notice with respect to the Miller-based claim. He also contends the court should have appointed counsel to assist him in presenting that claim. Jewitt has not sustained his burden on review of establishing the court abused its discretion. Rather, because the court's rulings on the notice and the motion for rehearing are correct, we adopt them, finding no purpose would be served by restating its rulings in their entirety here. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993) (when trial court correctly rules on issues "in a fashion that will allow any court in the future to understand the resolution[, n]o useful purpose would be served by this court rehashing" its analysis).
¶6 With respect to the trial court's rejection of Jewitt's request for the appointment of counsel, we note the court stated, in denying the motion for rehearing, that Jewitt had failed to establish "good cause . . . to appoint counsel to represent him in his successive, untimely effort at obtaining post-conviction relief." Jewitt has not persuaded us that the court erred in failing to appoint counsel to assist him in developing the Miller-based claim in a petition. Because this was a successive post-conviction proceeding, Jewitt was not entitled to the appointment of counsel; rather, it was for the court to determine whether to appoint counsel in the exercise of its discretion. See Ariz. R. Crim. P. 32.4(c)(2); see also Osterkamp v. Browning, 226 Ariz. 485, ¶¶ 11, 15-16, 250 P.3d 551, 554-55 (App. 2011) (defendant entitled to appointment of counsel after "the filing of a timely or first notice" of post-conviction relief). Moreover, as this court stated in State v. Harden, 228 Ariz. 131, ¶ 11, 263 P.3d 680, 682-83 (App. 2011), Rule 32.2(b) does not require a trial court to appoint counsel when notice of post-conviction relief is "facially non-meritorious."
¶7 We grant Jewitt's petition for review but deny relief.