Court of Appeals of Arizona, Second Division, Department B
Not for Publication Rule 111, Rules of the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20032248 Honorable Paul E. Tang, Judge
Isabel G. Garcia, Pima County Legal Defender By Alex Heveri Tucson Attorneys for Petitioner
PETER J. ECKERSTROM, Judge
¶1 Demitri Shepherd petitions this court for review of the trial court's order denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb the court's ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Shepherd has not met his burden of demonstrating such abuse here.
¶2 In 2003, Shepherd pled guilty to theft of property having a value of $25, 000 or more by control and/or misrepresentation and/or by controlling stolen property. In 2004, the trial court suspended the imposition of sentence, placed Shepherd on a seven-year term of probation, and ordered him to pay $25, 000 in restitution. His probation was extended in 2011 because he still owed approximately $19, 000 in restitution. In 2012, Shepherd's probation was revoked because he violated its terms and conditions by leaving his home without authorization in order to gamble at local casinos. The trial court imposed a five-year prison term.
¶3 In February 2013, Shepherd filed a petition for post-conviction relief stating that, in 2008, he had sought but been denied disability benefits from the Social Security Administration (SSA). He stated he had appealed that denial and, in September 2012, received an award letter from the SSA finding he had been disabled since April 2008 and providing that he was entitled to receive benefits, including a lump sum for benefits "dating back to June 2010" that was "well beyond the amount of owed restitution." But, according to Shepherd, the SSA will not pay him those benefits while he is incarcerated. Shepherd argued that his "ability to pay off his owed restitution" constituted "newly- available evidence" pursuant to Rule 32.1(e) relevant to his sentencing, and that the trial court should resentence him to "the mitigated term of 3 or 4 years." At a hearing on his petition, Shepherd argued in the alternative that his sentence should be vacated and he should be placed on probation so that he could receive the award from the SSA and pay the restitution owed. The court denied relief, concluding Shepherd's award was not newly discovered evidence.
¶4 On review, Shepherd repeats his argument that the SSA award constitutes newly discovered evidence. A defendant seeking relief on the basis of newly discovered evidence must "establish that the evidence was discovered after trial although it existed before trial; that it could not have been discovered and produced at trial through reasonable diligence; that it is neither cumulative nor impeaching; that it is material; and that it probably would have changed the verdict" or sentence. State v. Saenz, 197 Ariz. 487, ¶ 7, 4 P.3d 1030, 1032 (App. 2000); accord Ariz. R. Crim. P. 32.1(e). Shepherd reasons that, because he was entitled to benefits in 2008, that fact "existed before he was sentenced" yet was "discovered afterwards, " and his entitlement to disability benefits is thus a newly discovered fact relevant to his sentence. He claims the trial court could consider, as a mitigating factor at a resentencing hearing, his suggestion that, had he been receiving the benefits in a more timely manner, he would have paid the full amount of his restitution, his probation term would not have been extended in 2011, and, therefore, he would not have violated his probation in 2012.
¶5 We agree with the trial court that Shepherd's SSA award does not constitute a newly discovered material fact because it did not exist at the time of his sentencing. When he was sentenced in 2012, Shepherd had not been found to be eligible for benefits and had received no benefits. The SSA award letter provided by Shepherd demonstrates only that he was disabled in 2008 and was entitled to SSA benefits. It does not alter the fact that he was not receiving them. Accordingly, the court did not err in denying Shepherd's petition for post-conviction relief
¶6 For the reasons stated, although review is granted, ...