Opinion
No. 2 CA-CR 2018-0021-PR
04-25-2018
THE STATE OF ARIZONA, Respondent, v. FRANCIS RAY COLLINS II, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Gerald R. Grant, Deputy County Attorney, Phoenix Counsel for Respondent Francis Ray Collins, Florence In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Maricopa County
No. CR2009146445001DT
The Honorable Randall H. Warner, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By Gerald R. Grant, Deputy County Attorney, Phoenix
Counsel for Respondent
Francis Ray Collins, Florence
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred.
VÁSQUEZ, Presiding Judge:
¶1 Francis Collins II seeks review of the trial court's orders summarily denying his petition for post-conviction relief and motion for rehearing filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb those orders unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Collins has not shown such abuse here.
¶2 After a jury trial, Collins was convicted of second-degree murder and sentenced to a nineteen-year prison term. We affirmed his conviction and sentence on appeal. State v. Collins, No. 1 CA-CR 12-0296, ¶ 16 (Ariz. App. Jun. 5, 2014) (mem. decision).
¶3 Collins sought post-conviction relief, arguing the state had (1) failed to present evidence to the grand jury that the victim's injuries had not necessarily been caused by a "nail puller" and could have been caused "by rocks, natural objects," (2) withheld from the defense evidence he had called 9-1-1, and (3) used "unlawful information" a detention officer had obtained by eavesdropping on his conversations with counsel. He further claimed trial counsel had been ineffective by failing to seek remand to the grand jury and because he had "caught his attorney drinking alcohol" at lunch twice during the trial. The trial court summarily denied relief, concluding that Collins's claims of trial error were precluded because they could have been raised on appeal, that he had not identified "any instance in which counsel's performance was deficient as a result" of his alleged alcohol consumption and that, even if counsel were deficient in failing to challenge the indictment, Collins could not show prejudice "[b]ecause the jury found [him] guilty beyond a reasonable doubt."
¶4 Collins filed a motion for rehearing arguing, for the first time, that he had directed his appellate counsel to raise the issues the trial court found precluded and that there had been a "pattern of misconduct" by the state. The trial court denied the motion, and this petition for review followed.
¶5 On review, Collins essentially repeats his claims of trial error, characterizing them as prosecutorial misconduct. He also repeats his claims that his trial counsel's alleged alcohol consumption affected his performance during trial, that counsel should have challenged the indictment, and that he had instructed appellate counsel to raise on appeal his claims of trial error. But, to the extent Collins raised these claims for the first time in his motion for rehearing, the trial court was not required to address their merits, and neither is this court. See State v. Bortz, 169 Ariz. 575, 577 (App. 1991) ("[A] court will not entertain new matters raised for the first time in a motion for rehearing."). And, we agree with the trial court that his claims of trial error are precluded pursuant to Rule 32.2(a)(3), and that he has not made a colorable claim that counsel fell below prevailing professional norms or that he was prejudiced thereby. See State v. Bennett, 213 Ariz. 562, ¶ 21 (2006). The court correctly rejected his claims in a thorough and well-reasoned minute entry that we accordingly adopt. See State v. Whipple, 177 Ariz. 272, 274 (App. 1993).
¶6 We grant review but deny relief.