Opinion
No. 2 CA-CR 2018-0291-PR
01-10-2019
THE STATE OF ARIZONA, Respondent, v. MARK ANTHONY LUGO, Petitioner.
Mark Anthony Lugo, 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NOT FOR PUBLICATION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 Pima County
No. CR035437
The Honorable Javier Chon-Lopez, Judge
REVIEW GRANTED; RELIEF DENIED
Mark Anthony Lugo, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Mark Lugo seeks review of the trial court's order summarily dismissing his seventh petition for post-conviction relief. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Lugo has not shown any such abuse here.
¶2 After a jury trial, Lugo was convicted of sexual conduct with a minor, attempted sexual conduct with a minor, sexual abuse, and child molestation. This court affirmed Lugo's convictions on appeal but remanded the case for resentencing on two of the four counts. State v. Lugo, No. 2 CA-CR 92-0561 (Ariz. App. Jan. 31, 1994) (mem. decision). Lugo was resentenced in August 1995. This court granted partial relief on review in Lugo's first post-conviction proceeding. State v. Lugo, No. 2 CA-CR 2007-0336-PR (Ariz. App. Apr. 30, 2008) (mem. decision). We denied relief on review in four subsequent proceedings. State v. Lugo, No. 2 CA-CR 2014-0092-PR (Ariz. App. Aug. 26, 2014) (mem. decision); State v. Lugo, No. 2 CA-CR 2011-0283-PR (Ariz. App. Jan. 12, 2012) (mem. decision); State v. Lugo, No. 2 CA-CR 2011-0041-PR (Ariz. App. May 19, 2011) (mem. decision); State v. Lugo, No. 2 CA-CR 2009-0201-PR (Ariz. App. Dec. 2, 2009) (mem. decision). Lugo again sought post-conviction relief in 2014, which the trial court denied. Lugo did not seek review of that ruling.
¶3 Lugo filed his most-recent petition in February 2018 raising numerous claims, including that there was newly discovered evidence that would "show [his] innocence." The trial court summarily dismissed the petition and denied Lugo's subsequent motion for reconsideration. This petition for review followed.
¶4 In its rulings dismissing Lugo's petition and denying his motion for reconsideration, the trial court exhaustively reviewed the procedural history of Lugo's case and the claims he had raised in previous petitions, and it detailed the plethora of claims Lugo had made in his various filings and explained the reasons those claims failed. Lugo's petition for review, which largely rehashes those claims, has provided no basis for us to disturb the court's rulings, nor does our review of the record; accordingly, we adopt those rulings. See State v. Whipple, 177 Ariz. 272, 274 (App. 1993).
In its ruling dismissing Lugo's petition, the trial court did not address his claim, raised in a purported supplement, that May v. Ryan, 245 F. Supp. 3d 1145 (D. Ariz. 2017), constituted a significant change in the law entitling him to relief pursuant to Rule 32.1(g). In May, a federal trial court determined that A.R.S. §§ 13-1407(E) and 13-1410 unconstitutionally shifted the burden of proof to the defendant because, by making the lack of sexual motivation an affirmative defense to child molestation, he was required to disprove an element of the offense, namely "sexual intent." 245 F. Supp. 3d at 1154-56, 1164. As the trial court here correctly noted in denying Lugo's motion for reconsideration, however, the court's conclusion in May is contradicted by binding Arizona authority. See State v. Holle, 240 Ariz. 300, ¶¶ 17-19, 40 (2016) (§§ 13-1407(E) and 13-1410 do not violate due process); State v. Smyers, 207 Ariz. 314, n.4 (2004) (Arizona's courts bound by decisions of supreme court and lack authority to modify or disregard its rulings). And, in any event, we are not bound by federal district court decisions. Arpaio v. Figueroa, 229 Ariz. 444, ¶ 11 (App. 2012) (federal district court decisions concerning state law not binding on this court). --------
¶5 We write further only to comment, as did the trial court, that Lugo did not seek post-conviction relief for well over a decade after his resentencing. And this current proceeding was initiated approximately twenty-three years after his resentencing. To bring a claim of newly discovered evidence, a defendant is required to demonstrate he "exercised due diligence" in discovering that evidence. Ariz. R. Crim. P. 32.1(e)(2). And a defendant raising a claim exempt from the timeliness requirements must nonetheless "explain the reasons for not raising the claim in a previous notice or petition." Ariz. R. Crim. P. 32.2(b). The trial court noted in its ruling that it would "give [Lugo] the benefit of assuming" he had been diligent. But Lugo has made no effort to demonstrate his diligence nor explain his reasons for the extraordinary delays in bringing his claims, which warrant summary rejection on that basis alone.
¶6 Although we grant review, relief is denied.