Not For Publication See Ariz.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 No. CR1997010568 The Honorable Sherry K. Stephens, Judge
William G. Montgomery, Maricopa County Attorney By Lisa Marie Martin, Deputy County Attorney, Phoenix Counsel for Respondent
The Nolan Law Firm, Mesa By Todd E. Nolan and Cari McConeghy Nolan Counsel for Petitioner
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred.
¶1 Danny Hernandez petitions this court for review of the trial court's order summarily dismissing his successive 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). Hernandez has not met his burden of establishing such abuse here.
¶2 Hernandez was convicted after a jury trial of second- degree murder and two counts of reckless child abuse stemming from an incident in which Hernandez "broke [the eight-month-old victim's] arm, smothered her, and inflicted severe brain injuries from which she ultimately died." The trial court sentenced him to aggravated, concurrent and consecutive prison terms totaling thirty-four years. We affirmed his convictions and sentences on appeal. State v. Hernandez, No. 1 CA-CR 01-0258 (memorandum decision filed Dec. 24, 2001).
¶3 Hernandez sought post-conviction relief, and the trial court summarily denied relief in February 2003. After Hernandez filed a petition for review in this court, we denied review. State v. Hernandez, No. 1 CA-CR 03-0179 PRPC (order filed Mar. 24, 2004). Hernandez filed a notice of post-conviction relief in 2005, which the trial court summarily dismissed for failure to raise any nonprecluded claims. It also denied his subsequent motion for reconsideration and motion to amend. This court again denied review. State v. Hernandez, No. 1 CA-CR 05-0437 PRPC (order filed Apr. 27, 2006).
¶4 In 2011, Hernandez filed another petition for post- conviction relief, claiming that a doctor's report constituted newly discovered evidence pursuant to Rule 32.1(e) that he "did not kill the victim or break any of her bones" and that the report "point[ed] to the strong possibility of prosecutorial misconduct." Hernandez further asserted that Blakely v. Washington, 542 U.S. 296 (2004), and State v. Price, 217 Ariz. 182, 171 P.3d 1223 (2007), constituted significant changes in the law pursuant to Rule 32.1(g) relevant to his aggravated sentences. He asserted Blakely was retroactively applicable to him because his appeal was still pending when Blakely was decided, but made no such assertion regarding Price.
¶5 After the state filed its response, Hernandez filed a reply conceding that his conviction was final at the time Blakely had been decided but arguing for the first time that Blakely's determination that sentencing factors must be determined beyond a reasonable doubt is a "substantive rule" subject to retroactive application. He also conceded his claim of prosecutorial misconduct was precluded but asserted the doctor's report demonstrated he is "actually innocent."
¶6 The trial court summarily denied relief. It rejected his claims based on the doctor's report, determining he had not met the requirements of Rule 32.1(e) and, in any event, his claim was "actually a precluded ineffective assistance of counsel claim" that was additionally without merit. The court agreed with the parties that any claim of prosecutorial misconduct was precluded. And, citing State v. Febles, 210 Ariz. 589, 115 P.3d 629 (App. 2005), and Schriro v. Summerlin, 542 U.S 348 (2004), the court rejected Hernandez's argument that Blakely's determination regarding the burden of proof was retroactively applicable to his sentencing.
¶7 On review, Hernandez reurges his claims that Blakely constitutes a significant change in the law and the doctor's report constitutes newly discovered evidence that "bears upon the question of whether [he] is actually innocent of . . . causing the victim's death. We find it unnecessary, however, to address the merits of those arguments. Claims of newly discovered evidence, actual innocence, and significant change in the law are excepted from preclusion only if the defendant "set[s] forth . . . the reasons for not raising the claim in the previous petition or in a timely manner." Ariz. R. Crim. P. 32.2(b); see also Ariz. R. Crim. P. 32.1(e), (g), (h).
¶8 Hernandez filed this successive petition for post- conviction relief in October 2011-more than seven years after Blakely was decided, nearly two years after the doctor authored the report, and over a year since the doctor signed an affidavit discussing his findings. Hernandez did not assert that he only recently had discovered the doctor's report and affidavit and did not provide any reason for his failure to raise either his report-based claims or his Blakely claim in a timely manner. His failure to comply with Rule 32.2(b) required the summary dismissal of his claims, Ariz. R. Crim. P. 32.2(b), and we may uphold the trial court's ruling on any basis supported by the record, see State v. Olquin, 216 Ariz. 250, n.5, 165 ...