Opinion
2 CA-CR 2023-0133-PR
07-10-2023
The State of Arizona, Respondent, v. Corey Axon Karstetter, Petitioner.
MayesTelles PLLC, Phoenix By Sean P. Coll and Kaitlin S. DiMaggio Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR73820 The Honorable Laura M. Reckart, Judge
MayesTelles PLLC, Phoenix By Sean P. Coll and Kaitlin S. DiMaggio Counsel for Petitioner
Judge Gard authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Vásquez concurred.
MEMORANDUM DECISION
GARD, JUDGE
¶1 Corey Karstetter seeks review of the trial court's order summarily dismissing his successive notice of and petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Karstetter has not met his burden of establishing such abuse here.
¶2 Karstetter was convicted of first-degree murder in 1973 and sentenced to natural life in prison. His "sole defense was temporary insanity." State v. Karstetter, 110 Ariz. 539, 540 (1974). Our supreme court affirmed his conviction and sentence. Id. at 545. He unsuccessfully sought post-conviction relief in 1997.
¶3 In 2022, Karstetter filed a notice of and petition for post-conviction relief raising, among other things, a claim of newly discovered evidence, specifically that the diagnosis underlying his claim of temporary insanity "would not be accepted [today] as a scientifically sound diagnosis." He concluded he was therefore entitled to a new trial "under principles of due process" because his defense had rested on expert testimony later revealed to be "flawed."
¶4 Karstetter additionally argued that his trial counsel had been ineffective in pursuing a defense of temporary insanity and introducing otherwise-inadmissible evidence that Karstetter had sexually assaulted the victim to bolster that defense rather than pursuing a defense that Karstetter was guilty only of second-degree murder. Relatedly, he argued he was entitled to relief under Rule 32.1(h) because no reasonable jury could have found him guilty of first-degree murder had he not presented a temporary insanity defense. Citing Rule 32.1(c), Karstetter further argued his sentence was illegal because the jury did not find beyond a reasonable doubt that he had committed rape, which he asserted was a necessary predicate for his conviction of first-degree murder under the statute then in effect, A.R.S. § 13-452. See 1973 Ariz. Sess. Laws, ch. 138, § 1. The trial court summarily dismissed the proceeding. This petition for review followed.
¶5 On review, Karstetter first reurges his claim of newly discovered evidence under Rule 32.1(e). To make a colorable claim of newly discovered evidence, Karstetter must identify relevant evidence that existed at the time of trial but could not be discovered until after trial and provide sufficient facts for the trial court to conclude he was diligent in discovering that evidence. See State v. Bilke, 162 Ariz. 51, 52-53 (1989); see also Ariz. R. Crim. P. 32.1(e). He must also establish the evidence would likely have changed the verdict if known at the time of trial. See Bilke, 162 Ariz. at 53.
¶6 We agree with the trial court that Karstetter's Rule 32.1(e) claim warrants summary dismissal. He has cited no authority, and we find none, suggesting that a claim of newly discovered evidence may rest on a defendant's discovery that an expert's opinion supporting his defense had later been debunked. Karstetter presented his defense in full and, as the trial court noted, the evidence he now offers "simply ratifies the jury's determination that Defendant had failed to raise an adequate defense." Karstetter has not explained how subsequent scientific advancements that call into question his unsuccessful defense theory could create some defect in his trial.
¶7 Nor has Karstetter established any likelihood the outcome of his case would have been different had he not presented expert testimony in support of his insanity defense. It is undisputed that Karstetter severely beat the victim and then strangled her, resulting in her death. See Karstetter, 110 Ariz. at 540. Such a "protracted, brutal, and . . . sustained" attack on a victim is evidence of premeditation. See State v. Gulbrandson, 184 Ariz. 46, 65 (1995); see also 1973 Ariz. Sess. Laws, ch. 138, § 1 ("wilful, deliberate and premeditated killing" is first-degree murder).
¶8 And even were we to agree with Karstetter that his claim was viable under Rule 32.1(e), he has failed to demonstrate that he "exercised due diligence in discovering" the facts underlying it. His notice and petition do not discuss when he first became aware his trial defense was grounded in outdated science, nor when it would have been possible to discover that fact. Thus, not only does Karstetter's claim not meet the elements of Rule 32.1(e), he has failed to comply with Rule 32.2(b) by explaining why he did not "raise[] the claim in a previous notice or petition."
¶9 Karstetter also asserts the trial court erred by concluding his claim of ineffective assistance of counsel was untimely. He argues that his claim was permitted under Rule 32.4(b)(3)(D), which allows an untimely notice if the defendant shows "the failure to timely file a notice was not the defendant's fault." But a defendant is without fault in failing to file a timely notice when he "was unaware of his right to petition for post-conviction relief or of the time within which a notice of post-conviction relief must be filed or that he intended to challenge the court's decision but his attorney or someone else interfered with his timely filing of a notice." State v. Poblete, 227 Ariz. 537, ¶ 7 (App. 2011). Rule 32.4(b)(3)(D) does not allow a defendant to raise a recently discovered constitutional claim if the defendant had the opportunity to timely seek post-conviction relief and failed to do so. See Poblete, 227 Ariz. 537, ¶ 7. Karstetter has not suggested he was unaware of his right to seek post-conviction relief. For the same reason, Karstetter's related due process claim cannot be raised in this untimely proceeding.
¶10 Karstetter also reasserts his claim under Rule 32.1(c). Even disregarding the unexplained near-fifty-year delay in raising this claim, Karstetter is not entitled to relief. At the time of his conviction, a person committed first-degree murder by "wilful, deliberate and premeditated killing" or by killing in the course of committing or attempting to commit any of several enumerated offenses, including rape. 1973 Ariz. Sess. Laws, ch. 138, § 1. He asserts that, because he was not charged with rape and the jury did not "otherwise [find]" beyond a reasonable doubt that he had committed rape, he could not be sentenced to natural life in prison for committing first-degree murder.
¶11 This argument fails for several reasons. First, Karstetter has not developed any argument the jury could not have found him guilty of premeditated murder. Nor has he developed any argument or cited any authority that the predicate offense under former § 13-452 must have been charged in the indictment or found by the jury in a separate verdict form. The jury was instructed that it was required to find beyond a reasonable doubt that he had committed rape or attempted rape to convict him of first-degree murder on that basis. We are required to presume the jury followed that instruction. See State v. Newell, 212 Ariz. 389, ¶ 68 (2006). For the same reasons, we reject his claim under Rule 32.1(h) that no reasonable jury could have convicted him of first-degree murder.
¶12 We grant review but deny relief.