                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
                ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                      STATE OF ARIZONA, Respondent,

                                          v.

                  WILLIAM FRANKLIN REESE, Petitioner.

                          No. 1 CA-CR 13-0009 PRPC
                               FILED 4-8-2014


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2011-101500-003
                 The Honorable Kristin C. Hoffman, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Arthur Hazelton
Counsel for Respondent

William Franklin Reese, Kingman
Petitioner Pro Se
                            STATE v. REESE
                           Decision of the Court




                      MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.


T H O M P S O N, Judge:

¶1            Petitioner William Franklin Reese petitions this court for
review from the dismissal of his petition for post-conviction relief.
Presiding Judge Andrew W. Gould and Judges Jon W. Thompson and
Peter B. Swann have considered the petition for review and, for the
reasons stated, grant review but deny relief.

¶2             Reese pled guilty to trafficking in stolen property and the
trial court sentenced him to a stipulated term of 9.5 years' imprisonment.
Reese now seeks review of the dismissal of his untimely pro se petition for
post-conviction relief. We have jurisdiction pursuant to Arizona Rule of
Criminal Procedure 32.9(c).

¶3             In his petition for review, Reese claims law enforcement
officers tracked a vehicle in which he was a passenger through the
warrantless use of a Global Positioning System ("GPS") device. Reese
argues his trial counsel was ineffective when he failed to discover the
officers' use of the GPS device, inform Reese of the use of the device
and/or move to suppress evidence obtained through the use of the device.
Reese further contends his petition for post-conviction relief is timely
because he only recently learned the officers' used the GPS device.
Finally, Reese argues the Supreme Court's decision in United States v.
Jones, 132 S. Ct. 945 (2012), regarding the warrantless use of GPS tracking
devices constitutes a significant change in the law.1

¶4           To state a colorable claim of ineffective assistance of counsel,
a defendant must show that counsel's performance fell below objectively
reasonable standards and that the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). To show


1 While Reese presented additional issues below, he does not present those
issues for review.



                                     2
                             STATE v. REESE
                            Decision of the Court

prejudice, a defendant “must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. To be entitled to relief based on
newly discovered evidence, a defendant must establish the following: (1)
the evidence appears on its face to have existed at the time of trial but was
discovered after trial; (2) the petition alleges facts from which the court
could conclude the defendant diligently discovered the facts and notified
the court; (3) the evidence is not merely cumulative or impeaching; (4) the
evidence is relevant; and (5) the evidence would likely have altered the
verdict, finding, or sentence if known at the time of trial. State v. Bilke, 162
Ariz. 51, 52-53, 781 P.2d 28, 29-30 (1989).

¶5             We deny relief. Reese has never offered any evidence that
law enforcement officers used a GPS device to track the vehicle. He
identifies no documents that reference GPS tracking and does not identify
any witnesses who would testify regarding GPS tracking. Reese merely
makes the bald assertion that someone used GPS to track the vehicle. This
is not sufficient to present a colorable claim on any basis based on the
alleged use of a GPS device. Further, Reese concedes his wife owned the
vehicle and that his codefendant was driving at all relevant times while
Reese was merely a passenger. Reese offers no evidence he had a
reasonable expectation of privacy in the movements of the vehicle.
Therefore, he has failed to establish he would have had a basis to suppress
any evidence allegedly obtained through the use of a GPS device.

¶6             In further regard to the claims of ineffective assistance, Reese
concedes he does not know if his counsel was aware of the use of a GPS
device and does not know if the State disclosed the use of a GPS device.
Further, as noted above, Reese has never offered any evidence that law
enforcement officers used a GPS device to track the vehicle and he has
never identified any evidence through which counsel could have learned
of the use of a GPS device. Reese has, therefore, failed to state any claims
of ineffective assistance based on the alleged use of a GPS device. We also
note that even if counsel knew of the use of a GPS device, counsel had no
grounds to file a motion to suppress based on the absence of a warrant. In
United States v. Jones, the Supreme Court held for the first time that the
government installation of a GPS device on a vehicle for the purpose of
monitoring the vehicle's movements constitutes a "search" that ordinarily
requires a warrant. 132 S. Ct. 945, 949 (2012). The Court, however, did
not decide Jones until nearly three months after Reese pled guilty. See id.
Prior to Jones, the Court held the warrantless use of an electronic device to
track the movements of a suspect's vehicle did not violate the Fourth
Amendment. United States v. Knotts, 460 U.S. 276, 281-82 (1983).


                                       3
                  STATE v. REESE
                 Decision of the Court

¶7   For the above reasons, we grant review and deny relief.




                           :MJT




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