Opinion
No. 2 CA-CR 2019-0057-PR
04-30-2019
THE STATE OF ARIZONA, Respondent, v. GLENN CORNELL WORLEY, Petitioner.
Glenn C. Worley, 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NOT FOR PUBLICATION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. 31.19(e).
Petition for Review from the Superior Court in Cochise County
No. CR201000114
The Honorable James L. Conlogue, Judge
REVIEW GRANTED; RELIEF DENIED
Glenn C. Worley, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Eckerstrom concurred.
ESPINOSA, Judge:
¶1 Glenn Worley seeks review of the trial court's orders summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., and denying his subsequent motion for rehearing. We will not disturb those orders unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Worley has not shown such abuse here.
¶2 After a jury trial, Worley was convicted of seven counts of sexual conduct with a minor under the age of fifteen and sentenced to consecutive prison terms of life without the possibility of release for thirty-five years. We affirmed his convictions and sentences on appeal. State v. Worley, No. 2 CA-CR 2010-0299 (Ariz. App. Aug. 31, 2011) (mem. decision). Worley has since unsuccessfully sought post-conviction relief numerous times.
¶3 In August 2017, Worley initiated what the trial court described as his sixth attempt to obtain post-conviction relief. Worley indicated he was raising a claim of newly discovered evidence and ineffective assistance of counsel, asserting he had recently discovered that side effects from prescribed medication he had been taking at the time of his offenses interfered with his ability to exercise "[f]ree [w]ill" and "[a]dult [j]udgment."
¶4 The trial court summarily dismissed the proceeding. It concluded that, although "non-abusive use of prescription medication" could "negate the culpable mental state for a criminal act," Worley had not shown he suffered any side effects at the time of his offenses. The court also noted the evidence that Worley had acted intentionally was overwhelming in light of his extensive contact with the victim and attempts to conceal his predation, and further observed that Worley had otherwise been able to conduct his life normally—including serving in the military and maintaining "a stable residence"—notwithstanding the medication. The
court finally concluded Worley had not demonstrated counsel had been ineffective. This petition for review followed the court's denial of Worley's motion for rehearing.
¶5 On review, Worley first repeats his argument that the medication side effects are newly discovered evidence relevant to his mental state at the time of his offenses and asserts he is entitled to an evidentiary hearing. To be entitled to a hearing, Worley was required to "allege[] facts which, if true, would probably have changed" the outcome of his case. State v. Amaral, 239 Ariz. 217, ¶¶ 10-11 (2016) (emphasis omitted). He was also required to show that: (1) the evidence is, in fact, newly discovered; (2) he exercised due diligence in discovering and presenting it; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material to the issue involved; and (5) it probably would change the verdict or sentence. See Ariz. R. Crim. P. 32.1(e); State v. Serna, 167 Ariz. 373, 374 (1991). Moreover, "[e]vidence 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." State v. Saenz, 197 Ariz. 487, ¶ 13 (App. 2000).
¶6 Worley argues the trial court's "post-hoc rationalization" of his mental state improperly "introduced a legal theory outside the purview of a Jury." We disagree with this characterization. The trial court did nothing more than evaluate Worley's claim in light of the evidence, and that evidence was entirely inconsistent with his claim that his conduct was the result of medication side effects. Worley has provided only a laundry list of potential general side effects, and the only fact he identifies in support of his claim that he suffered side effects is the fact he committed sexual conduct with a minor. But he has not shown any possibility the medication could have caused him to engage in the extended pursuit of sexual contact with a twelve-year-old child, much less without apparently exhibiting any apparent symptoms. And, in any event, Worley's claim under Rule 32.1(e) fails because he has not identified any evidence suggesting the potential side effects could not have been discovered at the time of trial. See id.
¶7 Worley also repeats his claim of ineffective assistance of trial counsel. But he is not permitted to raise such a claim in this untimely proceeding. Ariz. R. Crim. P. 32.4(a)(2)(A), (C). And, Rule 32.1(e) does not contemplate a claim of newly discovered evidence of ineffective assistance of counsel, and is instead restricted to "newly discovered material facts . . .
[that] probably would . . . change[] the verdict or sentence." See also Serna, 167 Ariz. at 374.
¶8 Finally, Worley asserts the trial court erred by declining to review his amended reply to the state's response, arguing he was entitled to amend his reply because the state had improperly filed two responses to his petition, and his initial reply addressed only the first. Although it is not clear why the state filed two responses (by different attorneys), the later response raised no issues or arguments not addressed in the first. Any error was plainly without consequence. See A.R.S. § 13-3987 (error, mistake, or departure from procedural rule "shall [not] render the . . . proceeding invalid, unless it actually has prejudiced, or tended to prejudice, the defendant"); State v. Hickman, 205 Ariz. 192, ¶ 29 (2003) (nearly any error can be harmless).
¶9 Although we grant review, relief is denied.