                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                     STATE OF ARIZONA, Respondent,

                                        v.

                       DWIGHT JENKINS, Petitioner.

                         No. 1 CA-CR 15-0823 PRPC
                              FILED 7-27-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2008-007347-001
                             CR2008-031018-001
                 The Honorable Teresa A. Sanders, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Gerald R. Grant
Counsel for Respondent

Dwight Jenkins, Buckeye
Petitioner
                            STATE v. JENKINS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Jon W. Thompson joined.


M c M U R D I E, Judge:

¶1            Dwight Jenkins petitions for review from the dismissal of his
petition for post-conviction relief filed pursuant to Arizona Rule of
Criminal Procedure 32. We have considered the petition for review and, for
the reasons stated, grant review but deny relief.

¶2            On September 1, 2009, Jenkins pled guilty to one count each
of burglary in the first degree, a Class 2 felony with one prior felony
conviction, and possession of narcotic drugs for sale, also a Class 2 felony
with one prior felony conviction. The superior court imposed concurrent
prison terms, the longest being 18.5 years for the burglary conviction.

¶3             On June 29, 2012, Jenkins filed a petition for post-conviction
relief. He raised a claim of newly discovered evidence. The new evidence
consisted of a recent post-traumatic stress disorder (“PTSD”) diagnosis. Per
Jenkins, he “was advised that the abuse he endured as a youth into his teen
years probably played a major rule in his poor decision making which led
him to want to dominate people as an adult as he was dominated by adults
as a youth.” The superior court summarily dismissed the Rule 32
proceeding without an evidentiary hearing. Ultimately, the Arizona
Supreme Court granted review and remanded to the superior court so
Jenkins could have the opportunity to show that his PTSD diagnosis might
have altered his sentence.

¶4            On remand, and in compliance with the supreme court’s
orders, the superior court appointed Jenkins counsel to file a petition for
post-conviction relief. Counsel did so, and repeated Jenkins’s argument that
his post-sentencing PTSD diagnosis constituted newly discovered evidence
entitling him to an evidentiary hearing. The superior court summarily
denied the petition, and Jenkins timely sought review.

¶5           For a Rule 32 petitioner to obtain post-conviction relief based
on newly discovered evidence:




                                     2
                              STATE v. JENKINS
                             Decision of the Court

       (1) The evidence must appear on its face to have existed at the
       time of trial but be discovered after trial;

       (2) The [petition] must allege facts from which the court could
       conclude the defendant was diligent in discovering the facts
       and bringing them to the court’s attention;

       (3) The evidence must not simply be cumulative or
       impeaching;

       (4) The evidence must be relevant to the case;

       (5) The evidence must be such that it would likely have
       altered the verdict, finding, or sentence if known at the time
       of trial.

State v. Bilke, 162 Ariz. 52, 52–53 (1989).

¶6             Contrary to Jenkins’s argument, all Bilke requirements must
be satisfied to establish a colorable claim of newly discovered evidence. See
State v. Andersen, 177 Ariz. 381, 387 (App. 1993) (petition failed to present
colorable claim because one requirement not established). The superior
court found Jenkins had established the first four Bilke factors. However,
addressing the fifth Bilke factor, the court found the following:

       1. Although the defendant did present mitigating
       circumstances, they were far outweighed by the aggravating
       circumstances. The defendant had two prior felony
       convictions, was on parole absconder status and one of the
       offenses involved the defendant’s active participation with
       accomplices in a very violent home invasion armed robbery.

       2. The emotional, financial, and physical harm to the victims
       in the Burglary in the First Degree matter, especially the
       female victim, was immeasurable.

       3. If the Court had been aware of the defendant’s
       post-traumatic stress disorder diagnosis at the time of
       sentencing, it would not have affected the outcome of the
       defendant’s sentence in either case.

¶7           “A petition for post-conviction relief is addressed to the
sound discretion of the trial court,” and this Court reviews “a trial court’s



                                        3
                              STATE v. JENKINS
                             Decision of the Court

factual findings for clear error.” State v. Herrera, 183 Ariz. 642, 647–48
(App. 1995) (citing State v. Schrock, 149 Ariz. 433, 441 (1986); State v. Cuffle,
171 Ariz. 49, 51 (1992)).

¶8            Jenkins fails to establish an abuse of discretion. He does not
point to any facts in the record that contradict the superior court’s findings
supporting its conclusion that the PTSD diagnosis would not have affected
the sentences imposed. See Ariz. R. Crim. P. 32.9(c)(1)(iii) (petition for
review is required to contain “the facts material to a consideration of the
issues presented for review”). Further, the superior court judge who denied
Jenkins’s petition was the same judge who accepted the plea and sentenced
Jenkins. Thus, this judge was in the best position to determine whether
Jenkins’s PTSD would have affected the sentences imposed.

¶9            We grant review but deny relief.




                            AMY M. WOOD • Clerk of the Court
                            FILED: AA




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