State v. Benson ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
MARK ALAN BENSON, Petitioner.
No. 1 CA-CR 16-0492 PRPC
FILED 9-12-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2009-137548-001 DT
The Honorable Roger E. Brodman, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Mark Alan Benson, Buckeye
Petitioner
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.
STATE v. BENSON
Decision of the Court
C R U Z, Judge:
¶1 Petitioner Mark Alan Benson petitions this Court for review
from the dismissal of his petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
but deny relief.
¶2 A jury convicted Benson of second degree murder. He was
sentenced to 20 years in the Arizona Department of Corrections. His
conviction and sentences, as modified, were affirmed by this Court. State
v. Benson, 1 CA-CR 13-0176, 2014 WL 1515698 (Ariz. App. Apr. 17, 2014)
(mem. decision). Benson filed a petition for post-conviction relief in the
superior court alleging pretrial counsel (who withdrew before trial) was
ineffective. The petition was dismissed and Benson did not appeal that
decision.
¶3 Benson filed this successive petition for post-conviction relief
alleging for the second time that his pretrial counsel was ineffective in the
negotiation process for failing to provide him with “discovery” that would
have enabled him to make an informed decision to take an alleged plea of
10 to 16 years in the Arizona Department of Corrections. The superior court
summarily dismissed his petition.
¶4 Benson filed his petition for review reiterating his ineffective
assistance of pretrial counsel claim under Arizona Rule of Criminal
Procedure (“Rule”) 32.1(e) (“[n]ewly discovered material facts”) and added
claims under Rule 32.1(f), stating he was unable to obtain the new
information through no fault of his own, and implied he was unable to do
so as a result of the ineffectiveness of his Rule 32 counsel. The two Rule
32.1(f) claims were not presented to the superior court. Issues not presented
to the trial court may not be presented in the petition for review. Ariz. R.
Crim. P. 32.9(c)(1); State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App.
1991). Benson would not be entitled to Rule 32.1(f) relief under any
circumstances, as this is not his “of right” proceeding. Nor does Benson
meet his burden of proof as to the Rule 32.1(e) claim. This is the exact claim
that the superior court dismissed before. The only addition is an affidavit
from his trial counsel which merely reiterates his self-serving assertions.
Because third-party affidavits show no personal knowledge, they will
seldom entitle a petitioner to Rule 32 relief or an evidentiary hearing on
their own. See State v. Krum, 183 Ariz. 288, 293, 903 P.2d 596, 601 (1995).
The affidavit provides no newly discovered material facts to change the
analysis. See State v. Amaral, 239 Ariz. 217, 220, ¶¶ 11-12, 368 P.3d 925, 928
(2016). Therefore, he is precluded under Rule 32.2(a)(2).
2
STATE v. BENSON
Decision of the Court
¶5 With these additional comments, we note that the superior
court’s decision clearly identified and correctly ruled upon the issues
raised. We see no purpose in rehashing the superior court’s ruling and
therefore adopt the superior court’s decision. See State v. Whipple, 177 Ariz.
272, 274, 866 P.2d 1358, 1360 (App. 1993).
¶6 We grant review, but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
3