Not For Publication See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24
Petition for Review from the Superior Court in Pima County No. CR20094799001 The Honorable James E. Marner, Judge
Barton & Storts, P.C., Tucson By Brick P. Storts III Counsel for Petitioner
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.
KELLY, Presiding Judge
¶1 Juan Lebario petitions this court for review of the trial court's order summarily denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Lebario has not met his burden of establishing such abuse here.
¶2 Lebario was convicted after a jury trial of attempted first-degree murder, aggravated assault with a deadly weapon, drive-by shooting, theft of a means of transportation, criminal damage, and fleeing from a law-enforcement vehicle. He was sentenced to concurrent and consecutive prison terms totaling fifty years. We affirmed his convictions and sentences on appeal. State v. Lebario, No. 2 CA-CR 2010-0359 (memorandum decision filed Nov. 8, 2011).
¶3 Lebario's convictions stemmed from his theft of a truck at gunpoint. The day after the theft, while driving the stolen struck, he fired a gun at a law enforcement officer who had attempted to stop him. Approximately thirty to forty-five minutes later, other officers located Lebario, and he was arrested after a high-speed chase. Although Lebario is Hispanic, the first officer initially described him as black but later identified him from a photographic lineup. No gun was found in the truck.
¶4 Shortly after sentencing, the state disclosed the results of DNA tests performed on cuttings from a cap and shirt found in the truck. The testing showed the presence of Lebario's DNA on the cap, but the DNA of another individual, R.R., on the shirt. Lebario sought post-conviction relief, asserting the DNA test results constituted newly discovered evidence and counsel was ineffective in failing to file a motion for new trial when those results were first disclosed. The state included with its response a report of an interview with R.R., in which he stated he had met Lebario through a mutual acquaintance in order to assist Lebario with selling the truck. He said Lebario had a handgun. R.R. acknowledged being in the truck, but stated that Lebario had left in the truck after he was unable to locate a buyer.
¶5 The trial court summarily denied relief. It determined the newly discovered DNA evidence "significantly strengthened the State's case" because the DNA evidence on the cap matched Lebario, thereby "undermin[ing] the impeachment value of any shortcomings [in the first officer's] description of the shooter." The court also noted that R.R.'s interview further implicated Lebario. Thus, the court concluded, the newly discovered evidence would not change the verdict and counsel was not ineffective in failing to raise the issue in a motion for new trial.
¶6 On review, Lebario first asserts the trial court erred in rejecting his claim of newly discovered evidence. To prevail on that claim, Lebario must establish, inter alia, that the evidence "probably would have changed the verdict." State v. Saenz, 197 Ariz. 487, ¶ 7, 4 P.3d 1030, 1032 (App. 2000). He contends the evidence called into question the first officer's identification because the officer initially had described Lebario as black and did not describe any tattoos despite Lebario having "a large tattoo surrounding the front and sides of his neck that is clearly visible." Evidence that an individual other than Lebario had been in the truck, he asserts, would have bolstered his defense of mistaken identity.
¶7 We agree with the trial court the DNA evidence does far more to bolster the state's case than it does Lebario's. As the court noted, the evidence - consistent with the trial evidence - ties Lebario to the truck. And R.R.'s interview explains the presence of his DNA in the truck and further implicates Lebario. See State v. Hess, 231 Ariz. 80, ¶ 11, 290 P.3d 473, 476 (App. 2012) (in evaluating claim of newly discovered evidence, court may consider evidence "the state undoubtedly would offer at a new trial in response to the defendant's new evidence"). And we do not agree with Lebario that the evidence significantly weakens the first officer's identification. In order to accept that R.R. had been the thief and the one who had shot at the officer, the jury would have had to discount two other witness identifications of Lebario. Even if it did so, it also would have had to accept that Lebario had somehow become the driver of the truck during the brief time between the shooting and the next encounter with law enforcement and that Lebario, despite having not stolen the truck nor recently fired on a law enforcement officer, would nonetheless have fled from police. In sum, we see no reasonable likelihood this evidence would have altered the verdict.
¶8 Lebario appears to suggest that his claim of ineffective assistance of counsel still may be colorable even if we reject his claim based on newly discovered evidence. We cannot agree. Having determined the newly discovered evidence would not have altered the verdict, we have no basis to conclude counsel should have raised this claim in a motion for new trial nor that Lebario could have suffered any prejudice from counsel's failure to do so. See State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006) (colorable claim of ineffective assistance of counsel requires showing counsel's performance deficient and prejudicial).
¶9 Lebario also claims the trial court was required to find his claims "frivolous" before it could summarily deny his petition. He relies on the comment to Rule 32.6(c), which states: "If the court finds from the pleadings and record that all of the petitioner's claims are frivolous and that it would not be beneficial to continue the proceedings, it may dismiss the petition." This argument is specious. Rule 32.6(c) clearly directs a trial court to dispose of a petition summarily upon its determination "that no remaining claim presents a material issue of fact or law which would entitle the defendant to relief under this rule and that no purpose would be served by any further proceedings." That is ...