State
v.
Souch

This case is not covered by Casetext's citator
ARIZONA COURT OF APPEALS DIVISION TWOSep 6, 2018
No. 2 CA-CR 2018-0196-PR (Ariz. Ct. App. Sep. 6, 2018)

No. 2 CA-CR 2018-0196-PR

09-06-2018

THE STATE OF ARIZONA, Respondent, v. GERALD CHARLES SOUCH, Petitioner.

COUNSEL William G. Montgomery, Maricopa County Attorney By Gerald R. Grant, Deputy County Attorney, Phoenix Counsel for Respondent Gerald C. Souch, Kingman 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NOT FOR PUBLICATION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. CR0000159749
The Honorable Michael D. Gordon, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL William G. Montgomery, Maricopa County Attorney
By Gerald R. Grant, Deputy County Attorney, Phoenix
Counsel for Respondent
Gerald C. Souch, Kingman
In Propria Persona

MEMORANDUM DECISION

Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. ECKERSTROM, Chief Judge:

¶1 Gerald Souch seeks review of the trial court's orders denying his most-recent attempt to obtain post-conviction relief 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). Souch has not shown such abuse here.

¶2 In 1987, Souch pled guilty to first-degree burglary, aggravated assault, and three counts of sexual assault. The trial court sentenced him to consecutive prison terms totaling fifty-eight years. This court affirmed his convictions and sentences on appeal. State v. Souch, 1 CA-CR11455 (Ariz. App. Oct. 22, 1987) (mem. decision). Souch has since unsuccessfully sought post-conviction relief more than thirty times.

¶3 In November 2017, Souch filed several documents including a motion filed pursuant to Rule 32.12 seeking the results of DNA testing performed in his case, specifically of a sexual assault kit mentioned in the grand jury presentation. The trial court, despite noting that Souch had stated he had consensual sex with the victim, ordered the state to produce "any laboratory reports, underlying data, and lab notes not previously produced." The state filed a notice informing the court that the sexual assault kit had not been analyzed and had been destroyed in 1991 and, consequently, there was no material to produce.

¶4 Souch filed a "reply" to that notice, asserting that if the kit had not been tested, then a detective had committed perjury during the grand jury presentation because he stated he "was having the sexual assault kit analyzed." Souch thus argued that his due process rights had been violated and his plea rendered involuntary because of the state's failure to disclose exculpatory evidence. Souch also filed a notice asserting the state had failed to comply with A.R.S. § 13-4221(A)(1).

¶5 The trial court determined Souch had not identified a basis for relief, noting "[t]he time has come and gone for litigation of the merits underlying the convictions at issue." The court denied Souch's subsequent motion for reconsideration, and this petition for review followed.

¶6 On review, Souch repeats his argument that a detective committed perjury during the grand jury presentation and that the state failed to disclose that perjury to him. Absent from his petition, however, is any basis for this court to conclude these claims may be raised in this untimely proceeding. See Ariz. R. Crim. P. 32.4(a)(2)(A) (only claims raised pursuant to Rule 32.1(d) through (h) raisable in untimely proceeding). Even were we to construe his arguments as based on newly discovered evidence under Rule 32.1(e), he has not explained why it took him thirty years to seek testing of the sexual assault kit or to discover the alleged perjury. He therefore has not complied with Rule 32.2(b) by providing "reasons why [he] did not raise the claim in a previous petition or in a timely manner." And, insofar as Souch renews his argument that the state violated § 13-4221(A)(1) by failing to preserve the test kit, we note—as did the trial court—that statute did not exist when the state destroyed the kit. See 2008 Ariz. Sess. Laws, ch. 282, §§ 3, 4. Souch has failed to show the trial court abused its discretion in summarily rejecting his arguments.

In various filings below, Souch made arguments apparently related to the court's rejection of an earlier sentencing claim. The court rejected those arguments in orders from which Souch has sought review. However, Souch does not assert in his petition for review that the court erred in doing so and, accordingly, we do not address those arguments.

Section 13-4221(A)(1) requires the state to "retain all identified biological evidence that is secured in connection with a felony sexual offense or homicide" until the person convicted of that offense is released from incarceration or supervised release or, in "[a] cold case, fifty-five years or until a person is convicted of the crime and remains incarcerated or under supervised release for that offense." --------

¶7 We grant review but deny relief.