Opinion
No. CR 13-0326 PRPC
12-23-2014
STATE OF ARIZONA, Respondent, v. RAYMOND LUI FROST, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Karen Kemper Counsel for Respondent Raymond Lui Frost, Tucson Petitioner
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Petition for Review from the Superior Court in Maricopa County
No. CR 1988-005753
The Honorable Jo Lynn Gentry, Judge
REVIEW GRANTED; RELIEF GRANTED; REMANDED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Karen Kemper
Counsel for Respondent
Raymond Lui Frost, Tucson
Petitioner
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined.
BROWN, Judge:
¶1 Raymond Lui Frost petitions for review of the trial court's order summarily dismissing his notice of post-conviction relief. See Ariz. R. Crim. P. 32.1. Although we will not reverse a trial court's ruling in a Rule 32 proceeding "absent a clear abuse of discretion," State v. Swoopes, 216 Ariz. 390, 393, ¶ 4, 166 P.3d 945, 948 (App. 2007), we find such here and therefore grant relief.
¶2 A jury convicted Frost of armed robbery, kidnapping and attempted first degree murder. The trial court sentenced him to concurrent fifteen-year prison terms on the convictions for armed robbery and kidnapping and to a consecutive twenty-eight-year prison term on the attempted murder conviction. While his direct appeal was pending, Frost commenced a post-conviction relief proceeding in which he asserted claims of prosecutorial misconduct, police misconduct, trial court bias, and ineffective assistance of counsel. The trial court summarily dismissed the proceedings based on findings of preclusion and failure to state a colorable claim for relief. We consolidated the petition for review from the Rule 32 proceedings with the direct appeal, affirmed Frost's convictions and sentences, and denied review of his petition for review. State v. Frost, 1 CA-CR 89-0885 & 1 CA-CR 92-0296-PR (App. Jul. 27, 1993) (mem. decision).
¶3 On July 25, 2012, Frost filed the notice of post-conviction relief at issue here, which indicated he would be asserting a claim of newly discovered material facts that would establish unconstitutional suppression of evidence, unconstitutional use of perjured testimony, and other constitutional violations. In the notice, Frost stated that he first learned of the new facts on May 20, 2012, and that the new evidence would cast "serious doubt" of credibility of the police officers who testified. Included in the notice was an affidavit of indigence and request for appointment of counsel.
¶4 Without ruling on Frost's request for counsel, the trial court summarily dismissed his notice of post-conviction relief, ruling that Frost "cannot raise a claim of this nature in an untimely or successive notice of post-conviction relief." Frost filed a pro se motion for rehearing, arguing he was entitled to raise a claim of newly discovered facts and explaining the new evidence consisted of photographs of the crime scene that had been suppressed by the State and recently obtained by a defense investigator. Following oral argument, the trial court denied the motion based on a finding that Frost failed to offer proof to support his claim for a new trial. Frost filed a timely pro se petition for review.
¶5 We hold that the trial court abused its discretion in summarily dismissing the Rule 32 proceeding at the notice stage. A court is authorized to summarily dismiss a Rule 32 proceeding at the notice stage based on preclusion. Ariz. R. Crim. P. 32.2(a), 32.6(c). A claim is precluded when it "has been waived at trial, on appeal or in any previous collateral proceeding." Ariz. R. Crim. P. 32.2(a)(3). A petitioner like Frost, who files a successive notice of post-conviction relief, may only assert claims that fall within Rule 32.1(d), (e), (f), (g), or (h), and must state in the notice "meritorious reasons . . . substantiating the claim and indicating why the claim was not stated in the previous petition or in a timely manner." Ariz. R. Crim. P. 32.2(b); see also State v. Petty, 225 Ariz. 369, 372-73, ¶ 10, 238 P.3d 637, 640-41 (App. 2010) (explaining petitioners seeking to raise non-precluded claims in untimely or successive petitions may do so if they are able to state meritorious reasons for failing to assert the claims in a timely manner or in previous proceedings). In the instant case, the notice filed by Frost as supplemented by the motion for rehearing asserted a claim of newly discovered facts under Rule 32.1(e), predicated on photographs allegedly suppressed by the State, and explained that the reason why the claim was not raised in his previous petition was because his defense investigator was just recently able to obtain the photographs and subject them to digital enhancement. Thus, the notice complies with the requirements of Rule 32.2(b) for presenting a non-precluded claim in a successive petition.
¶6 The trial court's dismissal of the post-conviction proceedings at the notice stage for lack of proof was premature. The petition for post-conviction relief, not the notice, is the filing in which a defendant is required to establish a colorable claim for relief to avoid summary dismissal. See Ariz. R. Crim. P. 32.5 (enumerating contents of petition for post-conviction relief and requiring that petitioner detail facts of claim and submit "[a]ffidavits, records, or other evidence currently available to the defendant supporting the allegations" in the petition). The notice of post-conviction relief simply commences the proceeding and gives notice of the types of claims that will be raised. See Ariz. R. Crim. P. 32.4. Because the notice filed by Frost set forth the substance of the specific exception of the non-precluded claim and provided "meritorious reasons" for not raising the claim in previous proceedings, the trial court erred in summarily dismissing the proceedings, depriving Frost of the opportunity to establish the existence of a claim of newly discovered evidence under Rule 32.1(e). See State v. Cowles, 207 Ariz. 8, 9, ¶ 3, 82 P.3d 369, 370 (App. 2004) ("Generally, a court abuses its discretion where the record fails to provide substantial support for its decision or the court commits an error of law in reaching the decision.").
¶7 Accordingly, we grant the petition for review. We further vacate the order summarily dismissing the notice of post-conviction relief and remand to the trial court for further proceedings consistent with this decision.