Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2009-144768-002 The Honorable Lisa M. Roberts, Judge
Maricopa County Attorney's Office, Phoenix By Diane Meloche Counsel for Respondent
Anthony Volpe, Buckeye In Propria Persona Petitioner
Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Maurice Portley and Judge Kent E. Cattani joined.
¶1 Petitioner Anthony Volpe pled guilty to burglary in the first degree, dangerous, and the trial court sentenced him to fifteen years' imprisonment. Volpe filed a pro se of-right petition for post-conviction relief after his counsel could find no colorable claims for relief. The trial court summarily dismissed the petition and Volpe now seeks review. We review the summary dismissal of a petition for post-conviction relief for abuse of discretion. State v. Watton, 164 Ariz. 323, 325, 793 P.2d 80, 82 (1990). We have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).
¶2 Volpe argues his trial counsel was ineffective when he failed to obtain documents that showed Volpe had a contractual right to be on the premises where the victim's apartment was located and, therefore, did not enter the victim's apartment "unlawfully, " a necessary element of residential burglary. See Arizona Revised Statutes ("A.R.S") section 13-1507(A). Volpe further argues he has newly discovered evidence that establishes he had a right to be on the premises.
¶3 To state a colorable claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below objectively reasonable standards and that the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). To show prejudice, a defendant must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
¶4 Regarding newly discovered evidence, there are five factors a defendant must establish to obtain post-conviction relief based on newly discovered material evidence:
(1) The evidence must appear on its face to have existed at the time of trial but be discovered after trial;
(2) The motion must allege facts from which the court could conclude the defendant was diligent in discovering the facts and bringing them to court's attention;
(3) The evidence must not simply be cumulative ...