STATE OF ARIZONA v. CHARLES WAYNE MARIETTA

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FILED BY CLERK 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 APR 18 2013 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. CHARLES WAYNE MARIETTA, Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2013-0007-PR DEPARTMENT B MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20040962 Honorable Catherine Woods, Judge REVIEW GRANTED; RELIEF DENIED Barbara LaWall, Pima County Attorney By Jacob R. Lines Charles W. Marietta Tucson Attorneys for Respondent Florence In Propria Persona E S P I N O S A, Judge. ¶1 Petitioner Charles Marietta seeks review of the trial court s summary denial of his successive petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. After a jury trial, Marietta was convicted of sexual conduct with a minor and attempted sexual conduct with a minor and sentenced to a presumptive prison term of twenty years on the sexual conduct conviction, to be followed by lifetime probation on the attempted sexual conduct conviction. We affirmed his convictions and sentences on appeal. State v. Marietta, No. 2 CA-CR 2005-0398 (memorandum decision filed Mar. 29, 2007). The trial court denied Marietta s first petition for post-conviction relief, and we similarly denied relief on review. State v. Marietta, No. 2 CA-CR 2008-0410-PR (memorandum decision filed June 23, 2009). The Arizona Supreme Court denied review of our decision. ¶2 Marietta filed another notice of post-conviction relief and, to the petition that followed, attached an affidavit in which one of the jurors attested, [S]ome of the male jurors on the panel stated that they had been molested as children. The trial court denied relief, finding Marietta s claim of juror misconduct already had been raised and rejected in his first Rule 32 proceeding. On review, Marietta contends the affidavit presents newly discovered evidence entitling him to relief. See Ariz. R. Crim. P. 32.1(e); see also Ariz. R. Crim. P. 32.2(b) (claim based on Rule 32.1(e) not subject to preclusion in successive petition). ¶3 We find no abuse of discretion in the trial court s summary denial of relief. See State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006) (summary denial of post-conviction relief reviewed for abuse of discretion). The trial court clearly identified, addressed, and correctly resolved Marietta s claim, and no purpose would be served by repeating the court s analysis here; instead, we adopt it. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). In short, Marietta s claim is precluded 2 because it had been raised and decided on its merits in a previous Rule 32 proceeding and, as the court below correctly concluded, the averments in the affidavit merely restate those allegations and do not constitute newly discovered material facts under Rule 32.1(e). See Ariz. R. Crim. P. 32.2(a)(2); Marietta, No. 2 CA-CR 2008-0410-PR, ¶¶ 812. ¶4 For the reasons above, as well as those stated in the trial court s order and our previous decision, although we grant review, relief is denied. /s/ Philip G. Espinosa PHILIP G. ESPINOSA, Judge CONCURRING: /s/ Garye L. VÃ¡squez GARYE L. VÃ SQUEZ, Presiding Judge /s/ Virginia C. Kelly VIRGINIA C. KELLY, Judge 3

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