State v. Clemons ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
LEE ROY CLEMONS, Petitioner.
No. 1 CA-CR 13-0180 PRPC
FILED 08-26-2014
Petition for Review from the Superior Court in Maricopa County
No. CR2005-135498-001
The Honorable Sherry K. Stephens, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorneys’ Office, Phoenix
By Diane Meloche
Counsel for Respondent
Lee Roy Clemons, Florence
Petitioner In Propria Persona
STATE v. CLEMONS
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Chief Judge Diane M. Johnsen joined.
B R O W N, Judge:
¶1 Lee Roy Clemons petitions this court for review from the
dismissal of his petition for post-conviction relief. For the reasons stated,
we grant review and deny relief.
¶2 A jury convicted Clemons of armed robbery of a motel and
the trial court sentenced him to life imprisonment with a possibility of
parole after twenty-five years. We affirmed Clemons’ conviction and
sentence as modified on direct appeal. State v. Clemons, 1 CA-CR 06-0920,
2008 WL 2641308 (Ariz. App. Jan. 10, 2008). Clemons now seeks review of
the dismissal of his latest successive petition for post-conviction relief. We
have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).
¶3 Clemons argues he has newly discovered evidence that
entitles him to relief. He asserts there should be a receipt somewhere
showing that the desk clerk who was the victim of the robbery did not, as
she testified at trial, close out a cash register and put a paper clip on twenty
one-dollar bills that police later found in Clemons’ possession and which
the victim identified at trial.1 Clemons also argues his trial counsel was
ineffective for failing to discover the alleged receipt.
¶4 To be entitled to post-conviction relief based on newly
discovered evidence, a defendant must establish, among other factors, (1)
the evidence existed at the time of trial but the defendant discovered it after
trial; (2) the defendant was diligent in discovering the new evidence and
bringing it to the court’s attention; and (3) the evidence is not simply
1 The victim identified Clemons at the time of his arrest and at trial as
the person who robbed her at knifepoint.
2
STATE v. CLEMONS
Decision of the Court
cumulative or impeaching. State v. Bilke, 162 Ariz. 52, 52-53, 781 P.2d 28, 29-
30 (1989).
¶5 Clemons, however, offers no evidence such a receipt actually
exists, but merely speculates that one should exist based on his observations
as to how register close-outs are handled at the Department of Corrections
cafeteria. Second, Clemons has not alleged any facts from which one could
conclude he was diligent in discovering the new evidence and bringing it
to the court’s attention. With the exception of his own pleadings, all of the
supporting materials Clemons provides existed at the time of trial.2 He
offers no explanation for why he could not have raised this issue in one of
his prior post-conviction relief proceedings. Finally, Clemons concedes he
would offer the evidence to impeach the victim’s testimony. For these
reasons, Clemons has failed to state any colorable claim for relief based on
newly discovered evidence.
¶6 While the petition for review presents additional issues,
Clemons did not raise those issues in the petition for post-conviction relief
he filed below. A petition for review may not present issues not first
presented to the trial court. State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236,
238 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).
¶7 Based on the foregoing, we grant review and deny relief.
:gsh
2 Clemons did not provide any of these materials to the trial court for
consideration.
3