Opinion
No. 2 CA-CR 2020-0122-PR
09-15-2020
THE STATE OF ARIZONA, Respondent, v. WILLIAM MICHAEL JACKSON, Petitioner.
COUNSEL Law Office of Thomas Jacobs, Tucson By Thomas Jacobs Counsel for Petitioner
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NOT FOR PUBLICATION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
Nos. CR20070250001 and CR20064488001
The Honorable Teresa Godoy, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL Law Office of Thomas Jacobs, Tucson
By Thomas Jacobs
Counsel for Petitioner
MEMORANDUM DECISION
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Eckerstrom concurred. VÁSQUEZ, Chief Judge:
¶1 Petitioner William Jackson seeks review of the trial court's order dismissing his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007). Jackson has not sustained his burden of establishing such abuse here.
Our supreme court amended the post-conviction relief rules, effective January 1, 2020. Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019). "Because it is neither infeasible nor works an injustice here, we cite to and apply the current version of the rules." State v. Mendoza, 249 Ariz. 180, n.1 (App. 2020) ("amendments apply to all cases pending on the effective date unless a court determines that 'applying the rule or amendment would be infeasible or work an injustice'" (quoting Ariz. Sup. Ct. Order R-19-0012)). --------
¶2 After a jury trial, Jackson was convicted of continuous sexual abuse of a child, sexual conduct with a minor under the age of fifteen, child molestation, and two counts of sexual conduct with a minor. He was sentenced to a combination of consecutive and concurrent prison terms totaling thirty-six years. We affirmed his convictions on appeal, and affirmed his sentences as modified to account for presentence incarceration credit. State v. Jackson, No. 2 CA-CR 2011-0027, ¶¶ 29-30 (Ariz. App. Mar. 12, 2012) (mem. decision). Jackson thereafter sought and was denied post-conviction relief, and we denied relief on his petition for review. State v. Jackson, No. 2 CA-CR 2014-0335-PR (Ariz. App. Dec. 26, 2014) (mem. decision).
¶3 In December 2015, Jackson wrote a letter to the trial court "requesting an update as to the status of his case." The court noted that it had received a "Motion for Court-Appointed Counsel" on August 10, 2015, but that motion had not been filed with the clerk of the court and was therefore not in the record. It therefore appointed counsel and ordered counsel to file a notice upon his receipt of the record.
¶4 Appointed counsel received the record and after reviewing it filed a notice pursuant to Montgomery v. Sheldon, 181 Ariz. 256 (1995), stating he was unable to find "a sufficient factual or legal basis . . . upon which" to raise any claims and requesting time for Jackson to file a pro se supplemental petition. After multiple extensions of time, the grant of a motion for an investigator, the appointment of advisory counsel, and Jackson's eventual retention of advisory counsel as his new counsel, a petition was filed by new counsel.
¶5 In the petition, Jackson argued he had received ineffective assistance of trial counsel based on counsel's failure to "adequately present and explain the importance of the victim's medical records" to the trial court, to seek special-action review of the court's denial of discovery of the medical records, "to obtain an expert witness to testify about the physical impact of repeated anal penetration on a child victim," or to "obtain an expert to challenge the findings" of an expert witness called by the state. Determining the claims were precluded, the trial court summarily denied relief.
¶6 On review, Jackson asserts the trial court abused its discretion in rejecting his claims relating to the victim's medical records, speculating that the records in question, which were reviewed by the court in camera before the trial and during the pendency of this proceeding, must not have shown an "anomaly or trauma" to the victim's anus and would therefore have been exculpatory. He then cites due process authority and discusses his right to cross-examine witnesses, asserting "disallowing disclosure of the medical evidence was improper." And, citing State v. Diaz, 236 Ariz. 361 (2014), he argues "that the gravity of the consequences in refusing disclosure of the medical evidence" requires that this court not "uphold[] the trial court withholding th[e] evidence" from him and allow him to "maintain his claim of ineffective assistance of counsel."
¶7 To the extent Jackson asserts claims of due process violations and error by the trial court in regard to the medical evidence, such claims were not raised in Jackson's petition for post-conviction relief, and we therefore do not address them. This court will not consider for the first time on review issues that have neither been presented to, nor ruled on by, the trial court. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980); see also Ariz. R. Crim. P. 32.16(c)(2)(B) (petition for review shall contain "issues the trial court decided that the defendant is presenting for appellate review"). In any event, any such claims are precluded because he did not raise them on appeal. See Ariz. R. Crim. P. 32.1(a), Ariz. R. Crim. P. 32.2(a)(3). Likewise, the court properly concluded Jackson's claims of ineffective trial counsel are precluded because he did not raise them in his previous Rule 32 proceeding. See Ariz. R. Crim. P. 32.1(a), Ariz. R. Crim. P. 32.2(a)(3). And we cannot agree with Jackson that the principles set forth in State v. Diaz, are applicable here. 236 Ariz. 361 (2014). Unlike Diaz, Jackson has already raised claims of ineffective assistance of counsel in his previous Rule 32 proceeding, in which he was represented by counsel. See id. ¶¶ 10-11 (no waiver of ineffective assistance of counsel claim when failure to file petition in first proceeding not fault of defendant).
¶8 Therefore, although we grant the petition for review, we deny relief.