Opinion
2 CA-CR 2012-0308-PR
12-07-2012
THE STATE OF ARIZONA, Respondent, v. JAMES PRENTISS COGHILL, Petitioner.
Barbara LaWall, Pima County Attorney By Jacob R. Lines Attorneys for Respondent James P. Coghill In Propria Persona
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20042573
Honorable Teresa Godoy, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
Barbara LaWall, Pima County Attorney
By Jacob R. Lines
Tucson
Attorneys for Respondent
James P. Coghill Phoenix
In Propria Persona
KELLY, Judge. ¶1 Petitioner James Coghill seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., and its denial of his motion for reconsideration. We will not disturb those rulings unless the court clearly has abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We find no such abuse here. ¶2 Following two jury trials, Coghill was found guilty of one count of attempted sexual exploitation of a minor under the age of fifteen and acquitted of the remaining fourteen counts of sexual exploitation of a minor with which he had been charged. The trial court suspended the imposition of sentence and placed Coghill on ten years' probation. We affirmed Coghill's conviction and placement on probation on appeal, and rejected his claims that the trial court had erred by admitting his statement that he possessed pornography, admitting expert testimony relating to handwriting analysis, and denying his request for a jury instruction pursuant to State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964). State v. Coghill, No. 2 CA-CR 2009-0247 (memorandum decision filed Jan. 27, 2011). ¶3 As we noted in our memorandum decision, "Coghill was convicted of count number fifteen of the indictment, which alleged he had attempted to transmit, possess, or exchange sexually explicit videos of children under fifteen that were contained in a digital file." On review, Coghill essentially raises the same issues he presented in the trial court, arguing the court erred by denying the following claims: (1) he is entitled to a judgment of acquittal on count fifteen because it is based on a nonexistent statute, no evidence supports convicting him of "any" crime, and the verdict is inconsistent with his acquittal of the other fourteen charges;(2) the indictment is factually deficient (Coghill joined this claim below with his contention that the court lacked subject matter jurisdiction to hear this case); (3) there is no evidence to support his conviction; (4) the court erred in denying his Rule 20 motion; (5) the verdict was based on false testimony and constituted a denial of due process; (6) the prosecutor's conduct during closing arguments was improper; and (7) this court's ruling regarding the admissibility of Coghill's statement to police in our memorandum decision is in direct conflict with our previous opinion in this matter. To the extent Coghill's petition for post-conviction relief presented claims he raised or could have raised on direct appeal, they plainly are precluded by Rule 32.2(a), as the trial court correctly noted. This includes arguments one, four, five, and six. ¶4 Regarding Coghill's claim that the indictment was "deficient as a matter of law and any verdict rendered thereon is a nullity" (argument two), Arizona law does not permit a defendant to challenge the sufficiency of a charging document for the first time in a Rule 32 petition. See Ariz. R. Crim. P. 13.5(e) (defects in charging document must be raised in accordance with Rule 16 pretrial motion procedure); Ariz. R. Crim. P. 16.1(a) (Rule 16 governs pretrial motions); State v. Fullem, 185 Ariz. 134, 136, 912 P.2d 1363, 1365 (App. 1995) (finding defendant waived challenge to indictment by failing to object in trial court). Therefore, the trial court correctly refused to address this claim. ¶5 And, regarding Coghill's claim that there was no evidence to support his conviction (argument three), this claim is precluded by his failure to raise it in the appeal that followed his retrial. See Ariz. R. Crim. P. 32.2(a). Despite the fact that this argument was precluded, the trial court appears to have addressed it as an exception to preclusion under Rule 32.1(h), and rejected it on the ground no reasonable fact finder would have failed to find him guilty beyond a reasonable doubt. Noting that A.R.S. § 13-3553(A)(2) provides "[a] person commits sexual exploitation of a minor by knowingly . . . possessing . . . any visual depiction in which a minor is engaged in . . . sexual conduct," and that Coghill admitted that "six compact discs containing child pornography were found in [his] motor home," the court correctly determined there was sufficient evidence for a reasonable fact finder to conclude Coghill was guilty of attempted sexual exploitation of a minor. See also A.R.S. § 13-1001 (defining attempt). ¶6 Finally, regarding Coghill's claim that our prior rulings regarding the admissibility of his statement to the police were inconsistent (argument seven), the trial court correctly found it lacked the authority to review a ruling by this court. Nor is such a claim cognizable under Rule 32. Rather, the proper means of challenging this court's prior ruling was a petition for review to the Supreme Court of Arizona. See Ariz. R. Crim. P. 31.19 (petition for review of court of appeals' decision filed in supreme court). ¶7 For all of these reasons, review is granted but relief is denied.
Although Coghill stated his pleadings were filed "by and through Advisory Appellate Counsel," they appear to have been filed in propria persona. In addition, although Coghill called his pleading a motion for reconsideration, because Rule 32 does not contemplate such a motion, we infer the trial court treated it as a motion for rehearing pursuant to Rule 32.9(a), Ariz. R. Crim. P.
Coghill was retried after this court reversed his convictions and sentences in State v. Coghill, 216 Ariz. 578, 169 P.3d 942 (App. 2007).
To the extent Coghill intended to present this claim as one of ineffective assistance of counsel, the trial court correctly rejected any such claim, noting that Coghill attempted to raise it for the first time in his reply to the state's response to the petition for post-conviction relief. See State v. Lopez, 223 Ariz. 238, ¶ 7, 221 P.3d 1052, 1054 (App. 2009) (rule that defendant waives claims raised for first time in reply brief applies to Rule 32 proceedings). In his reply, although Coghill stated the issue before the court was "not whether [his] court-appointed lawyers inadequately represented" him, he nonetheless stated that if the court was concerned about trial counsel's conduct, it could "[s]imply add this charge [of ineffective assistance of trial counsel]" to the issues he had raised in his petition.
Although we do not necessarily agree with the trial court that claims of prosecutorial misconduct may not be raised in a post-conviction proceeding, we nonetheless agree with the court's ultimate finding that the claim is precluded in this case. See State v. Oakley, 180 Ariz. 34, 36, 881 P.2d 366, 368 (App. 1994) (appellate court "will affirm the trial court when it reaches the correct result even though it does so for the wrong reasons").
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VIRGINIA C. KELLY, Judge
CONCURRING: _______________
GARYE L. VÁSQUEZ, Presiding Judge
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PHILIP G. ESPINOSA, Judge