Not For Publication See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24
Petition for Review from the Superior Court in Maricopa County Nos. CR2008007347001SE and CR2008031018001SE The Honorable Teresa Sanders, Judge
Dwight Jenkins, Buckeye In Propria Persona
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.
KELLY, Presiding Judge
¶1 Petitioner Dwight Jenkins seeks review of the trial court's order dismissing what appears to be his second notice of 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). We find no such abuse here.
¶2 Pursuant to separate plea agreements, Jenkins was convicted of possession of narcotic drugs for sale and first-degree burglary and was sentenced in 2009 to concurrent prison terms, the longer of which is 18.5 years. On June 29, 2012, Jenkins filed a pro se notice of and petition for post-conviction relief. He indicated in his notice that he had "not sought any previous relief." But in his petition for review he states he "initiated his first Rule 32 proceeding on a claim of ineffective assistance of counsel in 2010." However, the record does not contain any documentation of Jenkins's first petition. To further complicate matters, in its ruling dismissing Jenkins's notice of post-conviction relief, the trial court stated: "This is the defendant's second Rule 32 proceeding. The defendant's first Rule 32 proceeding." And, finally, although the court stated it had reviewed Jenkins's notice of post-conviction relief, and in fact dismissed that notice, it nonetheless discussed claims presented in the petition, which as previously noted, was filed simultaneously with the notice.
¶3 In his notice of post-conviction relief, Jenkins indicated he was raising a claim based on newly discovered evidence pursuant to Rule 32.1(e). In his petition for post-conviction relief, he asserted (1) the newly discovered evidence was his 2012 diagnosis of post-traumatic stress disorder; (2) he was entitled to be resentenced in light of that new evidence; (3) the court should order the Department of Corrections to provide his "entire mental health medical records beginning in April 2012"; and, (4) trial counsel had rendered ineffective assistance. In its ruling dismissing the notice, the court concluded Jenkins could not raise a claim of ineffective assistance of counsel in an untimely or successive petition for postconviction relief; noted he had failed "to provide any facts, affidavits, records, or other evidence" to support his claim of newly discovered evidence; and, denied his discovery request regarding his mental health records.
¶4 We note at the outset, although the trial court considered the claims Jenkins raised in his petition for postconviction relief, something it was not required to do, it nonetheless correctly dismissed the notice of post-conviction relief. In his notice, Jenkins stated his intent to raise only one claim-newly discovered evidence. As previously noted, it is unclear whether this is Jenkins's first or second post-conviction proceeding. In any event, because his notice was either untimely,  or successive, the court properly dismissed it.
¶5 Rule 32.2(b) articulates a mechanism by which courts may determine from the notice itself whether a claim that could have been raised in a prior proceeding, nevertheless may avoid preclusion. Specifically, Rule 32.2(b) provides that when a defendant is raising a claim of newly discovered evidence pursuant to Rule 32.1(e) in a successive or untimely post-conviction proceeding,
the notice of post-conviction relief must set forth the substance of the specific exception and the reasons for not raising the claim in the previous petition or in a timely manner. If the specific exception and meritorious reasons do not appear substantiating the claim and indicating why the claim was not stated in the previous petition or in a timely manner, the notice shall be summarily dismissed.
¶6 To obtain relief pursuant to Rule 32.1(e), the proffered evidence must have existed at the time of trial but be discovered only after trial; thus, evidence is "newly discovered" only if it is "unknown to the trial court, the defendant, or counsel at the time of trial and neither the defendant nor counsel could have known about its existence by the exercise of due diligence." State v. Saenz, 197 Ariz. 487, ¶ 13, 4 P.3d 1030, 1033-34 (App. 2000). In his notice of post-conviction relief, Jenkins did not identify the newly discovered evidence, and thus necessarily failed to address how such evidence would have affected his verdict or sentence or why this unidentified evidence was unavailable to him at his change-of-plea hearing, at sentencing, or within ninety days of judgment. See Ariz. R. Crim. P. 32.1(e).
¶7 In fact, his notice merely stated, "Petitioner[']s claim is pursuant to 32.1(E)(1)-Newly discovered material evidence-Pro Se Petition is being delivered with this Notice." Accordingly, although Jenkins suggested his claim was grounded on newly discovered evidence, and thereby excepted from preclusion under Rules 32.1(e) and 32.2(b), his notice included neither "the substance of the specific exception" nor "meritorious reasons . . . indicating why the claim was not stated in the previous petition or in a timely manner." Ariz. R. Crim. P. 32.2(b).
¶8 Therefore, the trial court did not abuse its discretion in summarily dismissing Jenkins's notice of post-conviction relief. Because dismissal based solely on the notice was proper, we do not consider the issues raised in the petition and considered by the court. Cf. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) ("We are obliged to affirm the ...