Opinion
No. 1 CA-CV 18-0719
11-19-2019
In re the matter of: ANTHONY JAMES MERRICK, III, Appellant.
COUNSEL Anthony James Merrick, III, Florence Appellant Maricopa County Attorney's Office, Phoenix By Lisa Marie Martin Counsel for Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2018-005685
The Honorable Connie Contes, Judge
AFFIRMED
COUNSEL Anthony James Merrick, III, Florence
Appellant Maricopa County Attorney's Office, Phoenix
By Lisa Marie Martin
Counsel for Appellee
MEMORANDUM DECISION
Chief Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Randall M. Howe and Judge David D. Weinzweig joined. SWANN, Chief Judge:
¶1 In 2011, Anthony James Merrick, III, was convicted and sentenced for numerous offenses related to his participation in a fraudulent gift-card scheme. We affirmed most of Merrick's convictions and sentences in 2012, State v. Merrick, 1 CA-CR 11-0549, 2012 WL 4955425, at *1, ¶ 1 (Ariz. App. Oct. 18, 2012), and in 2014 confirmed that he had waived his right to represent himself in the appeal, State v. Merrick, 1 CA-CR 11-0549, 2014 WL 4952263, at *1, ¶ 1 (Ariz. App. Oct. 2, 2014). Merrick then sought post-conviction relief, which the superior court denied, and which we denied on review in 2017. State v. Merrick, 1 CA-CR 15-0596 PRPC, 2017 WL 6567944, at *1, ¶¶ 1-4 (Ariz. App. Aug. 31, 2018). We also affirmed in 2015 the superior court's dismissal of a civil action that Merrick had brought against his co-defendant and others on the theory that they had stolen his identity to commit the offenses for which he was convicted. Merrick v. Hurley, 1 CA-CV 14-0259, 2015 WL 2384050, at *1-2, ¶¶ 1-3, 6 (Ariz. App. May 12, 2015).
¶2 Most recently, in July 2018, Merrick filed a Petition for Judicial Determination of Factual Innocence under A.R.S. § 12-771 and Ariz. R. Civ. P. 57.1, again accusing his co-defendant of identity theft and arguing that evidence showed he was imprisoned at the time of the offenses. The superior court granted the state's motion to dismiss. Merrick appeals.
¶3 Section 12-771 provides, in relevant part:
A. A person, or a prosecuting agency on behalf of the person, may petition the superior court for a judicial determination of the person's factual innocence if as a result of the person's personal identifying information being taken, the person's name was either:
1. Used by another person who was arrested, cited or charged with a criminal offense.
2. Entered as of record in a judgment of guilt in a criminal case.
. . . .
G. If the court finds by clear and convincing evidence that the person's name was used as set forth in subsection A of this section the court shall find the person factually innocent of the offense.
. . . .
J. Nothing in this section shall delay a proceeding or in any other manner affect a criminal case.
¶4 When statutory language "is clear and unambiguous, we apply the plain meaning and our inquiry ends." State v. Burbey, 243 Ariz. 145, 147, ¶ 7 (2017). Based on its plain language, A.R.S. § 12-771 "applies when the person seeking relief has not actually been arrested or charged, but the person's name nevertheless appears on official records stating to the contrary." State v. Mohajerin, 226 Ariz. 103, 108, ¶ 14 n.3 (App. 2010). It does not, as Merrick contends, provide a procedure by which a person convicted of a crime may challenge the conviction on the theory that one who stole his identity was the responsible party. Such challenges may be raised instead in a motion for new trial, a direct appeal, or a petition for post-conviction relief. See, e.g., Ariz. R. Crim. P. 24.1(c)(1) (providing that superior court may grant new trial if verdict is contrary to law or the weight of the evidence); A.R.S. § 13-4033(A)(1) & Ariz. R. Crim. P. 31 (providing that defendant may appeal from conviction); A.R.S. § 13-4231 & Ariz. R. Crim. P. 32 (providing that defendant may pursue post-conviction relief).
¶5 We affirm the dismissal of Merrick's petition for relief under A.R.S. § 12-771. We note that Ariz. R. Crim. P. 32.2(b) permits successive petitions for post-conviction relief in limited circumstances. We express no opinion on whether Merrick may obtain relief by filing such a petition.