Opinion
No. 2 CA-CR 2014-0156-PR
07-30-2014
THE STATE OF ARIZONA, Respondent, v. LOREN STOECKEL, Petitioner.
COUNSEL Lori J. Lefferts, Pima County Public Defender By Lisa M. Hise, Deputy Public Defender, Tucson Counsel for Petitioner
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 NOT FOR PUBLICATION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. CR20100300001
The Honorable Kathleen Quigley, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Lori J. Lefferts, Pima County Public Defender
By Lisa M. Hise, Deputy Public Defender, Tucson
Counsel for Petitioner
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred.
HOWARD, Judge:
¶1 Loren Stoeckel seeks review of the trial court's order summarily dismissing his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We grant review but deny relief.
¶2 Stoeckel was convicted of sexual assault and sentenced to an aggravated, ten-year prison term. We affirmed his conviction and sentence on appeal. State v. Stoeckel, No. 2 CA-CR 2011-0134 (memorandum decision filed Apr. 11, 2012). Stoeckel sought postconviction relief, claiming he had suffered "unforeseen consequences" from various medical conditions, including a stroke he had suffered in 2008, as well as "thyroid issues [and] leukemia," and the fact that he "has a pace maker, had gall bladder and appendix surgeries, and had a complete knee replacement in 2011." He explained that, since being incarcerated, he had twice suffered seizures and was now confined to a wheelchair. He argued those health problems constituted newly discovered material facts relevant to his sentence because his medical condition was "more severe . . . than any of the parties realized."
¶3 The trial court summarily dismissed the petition. It noted that the sentencing court had been "made well aware of [Stoeckel]'s medical condition" at sentencing, but had nonetheless imposed an aggravated sentence and that the court was aware Stoeckel's condition likely would deteriorate in prison. Thus, the court concluded, the information would not have altered Stoeckel's sentence. it also concluded the complications did not exist at the
time of trial and thus did not constitute newly discovered evidence pursuant to Rule 32.1(e).
¶4 On review, Stoeckel repeats his argument, asserting he is entitled to an evidentiary hearing and resentencing. A defendant is entitled to an evidentiary hearing only if his or her claim is colorable, that is, when the "allegations, if true, would have changed the verdict" or sentence. State v. Krum, 183 Ariz. 288, 292, 903 P.2d 596, 600 (1995). Stoeckel is not entitled to relief pursuant to Rule 32.1(e) unless he shows the evidence existed at the time of trial but was discovered after the trial and could not have been discovered previously with the exercise of reasonable diligence; the evidence is neither merely cumulative nor impeaching; and the evidence is material and if introduced at trial, "probably would have changed the verdict or sentence." Ariz. R. Crim. P. 32.1(e); see also State v. Bilke, 162 Ariz. 51, 52-53, 781 P.2d 28, 29-30 (1989); 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 Stoeckel is correct that newly diagnosed medical conditions that existed at the time of trial can constitute newly discovered evidence relevant to sentencing. See Bilke, 162 Ariz. at 53, 781 P.2d at 30 (post-traumatic stress disorder); State v. Cooper, 166 Ariz. 126, 128-30, 800 P.2d 992, 994-96 (App. 1990) (human immunodeficiency virus). He asserts that this reasoning also encompasses "unknown consequences" of existing illnesses because the underlying "physical problems" resulting in his new symptoms existed at the time of sentencing. But Bilke and Cooper discuss the recent discovery of conditions that existed at trial—not the worsening of a known condition. The worsening of a medical condition is not newly discovered evidence because the new or aggravated symptoms did not exist at the time of trial.
¶6 But Stoeckel also contends the severity of his illnesses was unknown at trial—in short, that it was unknown that his condition would worsen to the extent that it did. Even assuming
this circumstance could otherwise constitute newly discovered evidence, Stoeckel's claim nonetheless fails. He has identified nothing in the record suggesting that the worsening of his illnesses was not foreseeable—specifically, that information about how his various medical conditions might progress could not have been discovered at the time of his sentencing through due diligence. Saenz, 197 Ariz. 487, ¶ 13, 4 P.3d at 1033. Thus, he has not made a colorable claim of newly discovered evidence, and the trial court did not err in summarily rejecting this claim.
¶7 Although we grant review, we deny relief.