State v. Lucero ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
REYNEL AMADOR LUCERO, JR., Petitioner.
No. 1 CA-CR 13-0509 PRPC
FILED 2-10-2015
Petition for Review from the Superior Court in Maricopa County
No. CR2007-006312-001
The Honorable Michael W. Kemp, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Reynel Amador Lucero, Jr., Florence
Petitioner
MEMORANDUM DECISION
Acting Presiding Judge Lawrence F. Winthrop delivered the decision of the
Court, in which Judge Peter B. Swann and Chief Judge Diane M. Johnsen
joined.
STATE v. LUCERO
Decision of the Court
W I N T H R O P, Acting Presiding Judge:
¶1 Petitioner, Reynel Amador Lucero, Jr. (“Lucero”), petitions
this court for review of the trial court’s summary dismissal of his second
petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim.
P. We have considered the petition for review and, for the reasons stated,
grant review, but deny relief.
BACKGROUND
¶2 In 2007, Lucero was indicted on two counts of sexual conduct
with a minor under the age of fifteen, a class 2 felony and dangerous crime
against children. Upon trial to a jury, Lucero was convicted on both counts
as charged. The trial court sentenced Lucero to a twenty-year term of
imprisonment on one count and a consecutive life term without the
possibility of release for thirty-five years on the other. This court affirmed
Lucero’s convictions and sentences on direct appeal. See State v. Lucero, 223
Ariz. 129, 141, ¶ 40, 220 P.3d 249, 261 (App. 2009).
¶3 In 2010, Lucero commenced a timely post-conviction relief
proceeding. Appointed counsel filed a notice stating she had investigated
the case but had found no claims to raise. After repeated extensions, Lucero
filed a pro se petition for post-conviction relief in May 2012, alleging claims
of denial of due process, use of perjured testimony, and ineffective
assistance of counsel. On November 7, 2012, the trial court summarily
dismissed the petition, finding all of the claims other than ineffective
assistance of counsel were precluded and Lucero failed to state a colorable
claim of ineffective assistance of counsel. Lucero’s petition for review of
the trial court’s ruling was dismissed by this court as untimely.
¶4 On May 6, 2013, Lucero filed a second petition for post-
conviction relief, raising a claim of newly discovered evidence. The newly
discovered evidence consisted of documents obtained from the U. S. Army,
which Lucero claimed showed that an Army investigator who interviewed
him committed perjury while testifying about the interview at a
voluntariness hearing and at his trial. The trial court summarily dismissed
the petition, ruling (1) Lucero failed to provide facts, affidavits, records, or
other evidence to support why the claimed newly discovered evidence
could not have been discovered through reasonable diligence, and (2) the
evidence did not support a claim of newly discovered evidence under Rule
32.1(e) because its sole use would be for impeachment. Lucero filed a
timely petition for review. See Ariz. R. Crim. P. 32.9(c); State v. Savage, 117
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STATE v. LUCERO
Decision of the Court
Ariz. 535, 536, 573 P.2d 1388, 1389 (1978) (applying Rule 1.3, Ariz. R. Crim.
P., to a Rule 32.9(c) petition).
ANALYSIS
¶5 We review for an abuse of discretion the trial court’s
summary dismissal of a petition for post-conviction relief. State v. Bennett,
213 Ariz. 562, 566, ¶ 17, 146 P.3d 63, 67 (2006). We may uphold the trial
court’s ruling on any basis supported by the record. State v. Robinson, 153
Ariz. 191, 199, 735 P.2d 801, 809 (1987).
¶6 The trial court did not abuse its discretion in summarily
dismissing Lucero’s second petition for post-conviction relief. In its ruling
dismissing the petition, the trial court correctly concluded that Lucero had
failed to establish a colorable claim of newly discovered evidence because
the evidence would be used solely for impeachment purposes. We need
not address the trial court’s reasoning on this issue because, as the trial
court also found, Lucero failed to submit any evidence to show he
“exercised due diligence in securing the newly discovered material facts,”
as Rule 32.1(e)(2) requires. See State v. Saenz, 197 Ariz. 487, 490-91, ¶ 13, 4
P.3d 1030, 1033-34 (App. 2000) (discussing the requirement that a defendant
must have exercised due diligence for “newly discovered evidence” to
result in a new trial); State v. Andersen, 177 Ariz. 381, 387, 868 P.2d 964, 970
(App. 1993) (recognizing that all elements must be satisfied to establish a
claim of newly discovered evidence). Indeed, Lucero raised the matter of
the investigator’s alleged perjury in his first petition for post-conviction
relief and had approximately a year-and-a-half between commencing that
proceeding and filing his petition to obtain the evidence that is the subject
of his claim of newly discovered evidence in this second post-conviction
proceeding. In the absence of meritorious reasons indicating why the claim
of newly discovered evidence could not have been raised through
reasonable diligence in Lucero’s previous petition for post-conviction relief,
the trial court did not abuse its discretion in summarily dismissing his
untimely and successive second petition. See Ariz. R. Crim. P. 32.2(b).
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STATE v. LUCERO
Decision of the Court
¶7 Accordingly, we grant review, but deny relief.
:ama
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