Opinion
No. 2 CA-CR 2017-0313-PR
11-28-2017
THE STATE OF ARIZONA, Respondent, v. ELISIO SOLIS JR., Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By David R. Cole, Deputy County Attorney, Phoenix Counsel for Respondent Elisio Solis Jr., Florence 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NOT FOR PUBLICATION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. CR2005107852001DT
The Honorable Teresa Sanders, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By David R. Cole, Deputy County Attorney, Phoenix
Counsel for Respondent
Elisio Solis Jr., Florence
In Propria Persona
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Chief Judge Eckerstrom concurred.
EPPICH, Judge:
¶1 Elisio Solis Jr. seeks review of the trial court's order denying his successive petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Solis has not met his burden of demonstrating such abuse here.
¶2 Solis was convicted after a jury trial of second-degree murder and sentenced to a nineteen-year prison term. We affirmed his conviction on appeal, but remanded for resentencing because the trial court had erroneously relied on the infliction of serious physical injury as an aggravating factor. State v. Solis, No. 1 CA-CR 05-1241 (Ariz. App. Jan. 25, 2007) (mem. decision). On remand, the trial court again imposed a nineteen-year prison term, and we affirmed that sentence on appeal. State v. Solis, No. 1 CA-CR 07-1024 (Ariz. App. Jul. 1, 2008) (mem. decision). Solis sought post-conviction relief while his second appeal was pending. The trial court summarily denied relief, and this court denied review.
¶3 In 2013, Solis filed a notice of post-conviction relief, asserting he had recently been diagnosed with post-traumatic stress disorder (PTSD) and that his trial counsel had been ineffective in failing to investigate his mental health. The trial court summarily dismissed Solis's notice. We granted review and relief, concluding the court had erred by requiring Solis to provide supporting documentation with his notice. State v. Solis, No. 2 CA-CR 2014-0404-PR (Ariz. App. Dec. 17, 2014) (mem. decision).
¶4 On remand, the trial court appointed counsel. Counsel filed a notice stating she had reviewed the record and was "unable to discern any colorable claim upon which to base a Petition for Post-Conviction Relief." Solis then filed a pro se petition raising numerous claims, including that his PTSD diagnosis constituted newly discovered evidence and his trial, appellate, and Rule 32 counsel had been ineffective for various reasons, including failing to adequately investigate his mental health. He provided documents indicating he had been receiving mental health
treatment since 2011 and was diagnosed with PTSD in 2013. The trial court summarily denied relief, concluding that the bulk of Solis's claims were precluded and, with regard to his claim of newly discovered evidence, that Solis had not demonstrated he suffered from PTSD symptoms at the time of the 2005 homicide. This petition for review followed.
¶5 On review, Solis reasserts his claim of newly discovered evidence and asserts that evidence "can support a claim of ineffective assistance of counsel." He additionally argues he received ineffective assistance of Rule 32 counsel in this proceeding because counsel "abandoned [his] defense."
¶6 To raise a colorable claim of newly discovered evidence pursuant to Rule 32.1(e), Solis must demonstrate that: (1) the evidence is, in fact, newly discovered; (2) he exercised due diligence in discovering and presenting the evidence; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material to the issue involved; and (5) the evidence probably would change the verdict or sentence. See Ariz. R. Crim. P. 32.1(e); State v. Serna, 167 Ariz. 373, 374 (1991). A recent diagnosis of a mental condition that existed at the time of the offense can constitute newly discovered evidence. See State v. Bilke, 162 Ariz. 51, 53 (1989).
¶7 Solis does not address the trial court's conclusion that, absent evidence that he suffered PTSD symptoms in 2005, he has not shown the diagnosis could have altered his sentence. See Ariz. R. Crim. P. 32.1(e)(3). And, even assuming a claim of ineffective assistance of trial counsel can be predicated on newly discovered evidence, Solis has not identified any reason for trial counsel to have sought a mental health examination for him. State v. Bennett, 213 Ariz. 562, ¶ 21 (2006) ("To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant."); accord State v. Kolmann, 239 Ariz. 157, ¶ 9 (2016). Finally, Solis's claim that his Rule 32 counsel was ineffective is not a cognizable claim because he has no constitutional right to the effective assistance of Rule 32 counsel. See State v. Escareno-Meraz, 232 Ariz. 586, ¶ 4 (App. 2013).
¶8 We grant review but deny relief.