Opinion
No. 2 CA-CR 2015-0410-PR
12-02-2015
THE STATE OF ARIZONA, Respondent, v. MICHAEL DEVAUGHN JOHNSON, Petitioner.
Michael Johnson, Phoenix 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NOT FOR PUBLICATION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. 31.24. Petition for Review from the Superior Court in Maricopa County
No. CR2011114400003DT
The Honorable Pamela D. Svoboda, Judge
REVIEW GRANTED; RELIEF DENIED
Michael Johnson, Phoenix
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Kelly concurred. VÁSQUEZ, Presiding Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 Michael Johnson seeks review of the trial court's order 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 clearly abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Johnson has not met his burden of demonstrating such abuse here.
¶2 Johnson was convicted after a jury trial of possession of dangerous drugs for sale, possession of narcotic drugs for sale, and possession of marijuana. He was sentenced to concurrent prison terms, the longest of which were 15.75 years. Shortly after Johnson's August 2013 sentencing, he filed a motion to vacate the judgment, alleging he had located two witnesses who would support his defense that witnesses had mistaken him for another person. Before the court ultimately ruled on that motion, Johnson filed in January 2014 a notice of post-conviction relief stating he wished to raise claims of ineffective assistance of counsel, actual innocence, and newly discovered evidence.
The trial court initially denied the motion to vacate because the affidavits supporting it had not been notarized. The court, however, ultimately held an evidentiary hearing on the motion and denied it.
Johnson expressly requested that counsel not be appointed, and he waived counsel for his motion to vacate.
¶3 In February 2014, Johnson filed an addendum to his motion to vacate, listing a third witness he claimed could support his defense and asking the trial court to permit that witness to testify at the forthcoming evidentiary hearing on the motion. The addendum stated it had been filed "purs[u]ant to Rule 32" and was "based on newly discovered evidence." He also filed a similar addendum listing a fourth witness, as well as "witness information" providing the address of one of the witnesses. In March 2014, the court dismissed Johnson's notice of post-conviction relief. It stated it had construed Johnson's addendums and the witness information as "part of this Rule 32 proceeding," and rejected Johnson's claim of newly discovered evidence as untimely because the evidence identified was "known to [Johnson]" when he had filed the motion to vacate judgment. This petition for review followed.
¶4 On review, Johnson argues he submitted the addendums and witness documents in support of his motion to vacate made pursuant to Rule 24.2(a)(2), Ariz. R. Crim. P., and "never filed a petition for" post-conviction relief. He requests, therefore, that he be permitted to file a petition for post-conviction relief to argue his claim of newly discovered evidence. We agree Johnson's filings appear to be intended as supplements to his motion to vacate the judgment and not as raising a claim under Rule 32. Despite the single reference to Rule 32, the filings cited no pertinent authority, made no argument, and did not otherwise comply with Rule 32.5. Moreover, in each filing, Johnson referred specifically to his pending motion to vacate.
We express no opinion whether the trial court should have or could have granted Johnson's attempts to amend his motion to vacate. Additionally, we recognize that the court may have treated Johnson's filings as raising a claim under Rule 32.1(e) because those filings came well after the sixty-day limit for filing a motion to vacate judgment. Ariz. R. Crim. P. 24.2(a). Even were we to adopt this characterization, however, Johnson's claims fail because he did not demonstrate that he was diligent in securing the evidence or that it could not have been discovered before trial with reasonable diligence. Ariz. R. Crim. P. 32.1(e); State v. Saenz, 197 Ariz. 487, ¶ 13, 4 P.3d 1030, 1033 (App. 2000) ("Evidence is not newly discovered unless it was unknown to the trial court, the defendant, or counsel at the time of trial and neither the defendant nor counsel could have known about its existence by the exercise of due diligence."). --------
¶5 We nonetheless conclude the trial court was correct to summarily dismiss Johnson's notice of post-conviction relief. Although a claim of newly discovered evidence may be raised in an untimely proceeding like this one, the notice of post-conviction relief must provide "meritorious reasons . . . substantiating the claim and indicating why [it] was not stated . . . in a timely manner." Ariz. R. Crim. P. 32.2(b) and 32.4(a). Johnson's notice did not meet these requirements, and the court therefore was required to dismiss it. See Ariz. R. Crim. P. 32.2(b).
¶6 Although we grant review, we deny relief.