STATE OF ARIZONA v. MANUEL AUGUSTINE VILLA

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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 FILED BY CLERK JUL 23 2010 COURT OF APPEALS IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. MANUEL AUGUSTINE VILLA, Petitioner. ) ) ) ) ) ) ) ) ) ) DIVISION TWO 2 CA-CR 2010-0146-PR DEPARTMENT A MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR50280 Honorable Deborah Bernini, Judge REVIEW GRANTED; RELIEF DENIED Barbara LaWall, Pima County Attorney By Jacob R. Lines Manuel Augustine Villa B R A M M E R, Presiding Judge. Tucson Attorneys for Respondent Douglas In Propria Persona ¶1 Manuel Augustine Villa petitions this court for review of the trial court s order summarily denying his third petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We review a trial court s ruling on a petition for postconviction relief for an abuse of discretion. State v. Watton, 164 Ariz. 323, 325, 793 P.2d 80, 82 (1990). We grant the petition for review but deny relief. ¶2 A jury found Villa guilty of first-degree murder, committed in 1995. He was sentenced in May 1996 to life in prison without possibility of parole for twenty-five years. We affirmed his conviction and sentence on appeal. State v. Villa, No. 2 CA-CR 96-0338 (memorandum decision filed May 28, 1998). The trial court denied Villa s first petition for post-conviction relief in 1999, and he did not seek review of that decision. The court summarily denied his second petition for post-conviction relief, filed in August 2005. We granted Villa s petition for review of that decision but denied relief. State v. Villa, No. 2 CA-CR 2006-0028-PR (memorandum decision filed Oct. 26, 2006). ¶3 Villa filed his third notice of and petition for post-conviction relief in March 2010, asserting our supreme court s decision in Chronis v. Steinle, 220 Ariz. 559, 208 P.3d 210 (2009), constituted a significant change in the law that was applicable retroactively to his case. See Ariz. R. Crim. P. 32.1(g), 32.2(b). Villa suggested Chronis permitted him to challenge for the first time in a Rule 32 petition the legal sufficiency of his indictment. The trial court denied relief, concluding Chronis only addressed challenges to aggravating circumstances in a capital case pursuant to Rule 13.5(c), Ariz. 2 R. Crim. P., and therefore was inapplicable to Villa because his case is not a capital case. See Ariz. R. Crim. P. 32.2(b), 32.6(c). ¶4 In his petition for review, Villa asserts Chronis and Mejak v. Granville, 212 Ariz. 555, 136 P.3d 874 (2006), represent a significant change in the law applicable to his case, requiring his conviction to be overturned. See Ariz. R. Crim. P. 32.1(g). But our supreme court in Chronis held that Rule 13.5(c) allows a defendant in a capital case to request a probable cause determination for alleged aggravating circumstances. 220 Ariz. 559, ¶ 20, 208 P.3d at 214. In so holding, the court analyzed Rule 16.6(b), Ariz. R. Crim. P., and cited Mejak in support of the proposition that challenges to the legal sufficiency of a charging document may inquire into the facts of the case. Id. ¶¶ 9-10, see Mejak, 212 Ariz. 555, ¶ 4, 136 P.3d at 875 ( If a defendant can admit to all the allegations charged in the indictment and still not have committed a crime, then the indictment is insufficient as a matter of law. ). ¶5 As the trial court correctly concluded in addressing Villa s petition for post- conviction relief below, Chronis is entirely inapplicable to Villa s case. Nothing in Chronis suggests a defendant can challenge the sufficiency of a charging document for the first time in a Rule 32 petition, and Arizona law plainly does not permit a defendant to do so. 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). Moreover, despite his assertion that he is challenging the indictment, Villa s 3 petition for review instead is dedicated largely to attacking the sufficiency of the evidence presented at trial, an issue he could have raised on direct appeal but did not. He thus is precluded from raising it in a petition for post-conviction relief. See Ariz. R. Crim. P. 32.2(a)(1). ¶6 Accordingly, although we grant Villa s petition for review, we deny relief. /s/ J. William Brammer, Jr. J. WILLIAM BRAMMER, JR., Presiding Judge CONCURRING: /s/ Philip G. Espinosa PHILIP G. ESPINOSA, Judge /s/ Joseph W. Howard JOSEPH W. HOWARD, Chief Judge 4

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