Opinion
No. 1 CA-CR 19-0299 PRPC
02-27-2020
STATE OF ARIZONA, Respondent, v. EDDIE PARKER, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Daniel Strange Counsel for Respondent Eddie Parker, Florence Petitioner
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2010-112358-001
The Honorable Frank W. Moskowitz, Judge
REVIEW GRANTED AND RELIEF DENIED
COUNSEL Maricopa County Attorney's Office, Phoenix
By Daniel Strange
Counsel for Respondent Eddie Parker, Florence
Petitioner
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Diane M. Johnsen joined. HOWE, Judge:
¶1 Eddie Parker seeks review of the trial court's order denying his petition for post-conviction relief, filed pursuant to Arizona Rule of Criminal Procedure ("Rule") 33.1. This is Parker's fifth, successive petition.
¶2 In April 2010, Parker pleaded guilty to sexual abuse and two counts of attempted child molestation. He was sentenced to 15 years' imprisonment for attempted child molestation with 66 days' presentence incarceration credit. The court suspended the imposition of sentence for child abuse and the second attempted child molestation count and placed Parker on lifetime probation.
¶3 In October 2018, Parker untimely petitioned the trial court for post-conviction relief, seeking DNA testing. The State responded and, in his reply, Parker filed a new petition for post-conviction relief asserting that he had newly discovered evidence, that the State unlawfully suppressed evidence, and he was unlawfully induced to enter the plea agreement. Specifically, Parker argued that when the State filed its response, he learned for the first time that the State had no forensic evidence. The trial court dismissed Parker's petition finding that his claims were not colorable, and that his petition did not comply with Rule 33.2.
¶4 Absent an abuse of discretion or error of law, this court will not disturb a trial court's ruling on a petition for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19 (2012). Parker bears the burden to show that the trial court abused its discretion by denying the petition for post-conviction relief. See State v. Poblete, 227 Ariz. 537, 538 ¶ 1 (App. 2011) (petitioner has burden of establishing abuse of discretion on review).
¶5 Parker argues that the trial court should have ordered an evidentiary hearing rather than dismissing his petition because the State failed to disclose that it lacked forensic evidence. A petitioner is entitled to an evidentiary hearing if he or she presents a colorable claim. State v. Amaral, 239 Ariz. 217, 219 ¶ 9 (2016). A petitioner's claim is subject to summary dismissal "[i]f the alleged facts would not have probably changed the verdict or sentence." Id. at 220 ¶ 11.
¶6 The trial court did not abuse its discretion by dismissing Parker's petition. The record shows that on March 18, 2010, defense counsel requested disclosure of, among other things, law enforcement reports and the results of any physical examinations or scientific tests. The State then had 30 days to disclose the requested material. Ariz. R. Crim. P. 15.1(e)(1). Parker entered into his plea agreement on April 4, 2010, before the State was required to make the required disclosure. As a result, the State's failure to disclose its lack of forensic evidence does not alone entitle Parker to an evidentiary hearing.
¶7 Additionally, even though Parker did not know that the State lacked forensic evidence, this fact would not have probably changed the verdict or sentence. The victim told police that Parker kissed her, touched her breast, and put his hand down her pants, touching her pubic area. When interviewed by police, Parker admitted that he kissed the victim, touched her bare breast, and touched her pubic area. As a result, the fact that the State did not have forensic evidence would not have probably changed the verdict or sentence and the trial court did not abuse its discretion by dismissing Parker's petition for post-conviction relief. See Amaral, 239 Ariz. at 217 ¶ 9.
We do not address Parker's argument that he received ineffective assistance of counsel because he first raised the issue in his motion for a rehearing. See State v. Bortz, 169 Ariz. 575, 577 (App. 1991) ("The law is clear that a court will not entertain new matters raised for the first time in a motion for rehearing."); see also Ariz. R. Crim. P. 33.16(c)(2)(B) (requiring petition for review to contain "a statement of issues the trial court decided that the defendant is presenting for appellate review"). --------
¶8 We have reviewed the record in this matter, the trial court's order denying the petition for post-conviction relief, and the petition for review. We find that Parker has not established an abuse of discretion.
¶9 For the foregoing reasons, we grant review and deny relief.