                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                     FOX JOSEPH SALERNO, Petitioner.

                         No. 1 CA-CR 14-0728 PRPC
                              FILED 5-18-2017


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 2000-017362
                  The Honorable Jo Lynn Gentry, Judge

                REVIEW GRANTED; RELIEF GRANTED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane M. Meloche
Counsel for Respondent

Fox Joseph Salerno, Buena Vista, Colorado
Petitioner



                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge James P. Beene joined.
                            STATE v. SALERNO
                            Decision of the Court

W I N T H R O P, Judge:

¶1           Petitioner, Fox Joseph Salerno, petitions for review of the
summary dismissal of his petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
and relief.

¶2            In 2001, a jury convicted Salerno of theft, a class three felony,
and the superior court sentenced him to an aggravated twenty-year prison
term. Between 2003 and 2009, Salerno filed multiple petitions for post-
conviction relief, all of which were unsuccessful. In addition to these
proceedings in the criminal action, Salerno also sought relief through civil
court proceedings. A recurring theme in several of the petitions for post-
conviction relief and the civil proceedings was Salerno’s claim that the
victim and the prosecutor withheld evidence that would establish his
innocence of the theft charge.

¶3             In the instant proceeding for post-conviction relief, Salerno
filed a petition alleging claims of newly discovered evidence based on
documents found in the prosecutor’s file after Salerno gained access to the
file in 2012 through a 42 U.S.C. § 1983 action against the Maricopa County
Attorney’s Office. Among the documents found in the file were
undisclosed business records that Salerno alleges support his defense that
he paid for the merchandise that was the subject of the theft charge and a
copy of a letter from the prosecutor to his trial counsel offering a favorable
plea agreement that Salerno alleges was never presented to him by his
counsel for consideration. The superior court summarily dismissed the
petition, ruling Salerno failed to present any facts, records, or other
evidence why these facts could not have been produced at the trial phase
through reasonable diligence.

¶4            In his petition for review, Salerno argues the superior court
erred in summarily dismissing his claims of newly discovered evidence
without an evidentiary hearing. We review the dismissal of a petition for
post-conviction relief for an abuse of discretion. State v. Bennett, 213 Ariz.
562, 566, ¶ 17, 146 P.3d 63, 67 (2006). An abuse of discretion is “an exercise
of discretion which is manifestly unreasonable, exercised on untenable
grounds or for untenable reasons.” State v. Woody, 173 Ariz. 561, 563, 845
P.2d 487, 489 (App. 1992) (citation omitted).

¶5            “The purpose of an evidentiary hearing in the Rule 32 context
is to allow the court to receive evidence, make factual determinations, and
resolve material issues of fact.” State v. Gutierrez, 229 Ariz. 573, 579, ¶ 31,


                                      2
                             STATE v. SALERNO
                             Decision of the Court

278 P.3d 1276, 1282 (2012) (citations omitted). Summary dismissal of a
petition for post-conviction relief without an evidentiary hearing is only
appropriate “[i]f the court . . . determines that no remaining claim presents
a material issue of fact or law which would entitle the defendant to relief
under this rule and that no purpose would be served by any further
proceedings.” Ariz. R. Crim. P. 32.6(c). To be entitled to an evidentiary
hearing, a petitioner must present a colorable claim. See State v. Krum, 183
Ariz. 288, 292, 903 P.2d 596, 600 (1995). A colorable claim is one that, if the
allegations are true, would probably have changed the outcome. State v.
Amaral, 239 Ariz. 217, 219-20, ¶¶ 10-11, 368 P.3d 925, 927-28 (2016).

¶6            A colorable claim of newly discovered evidence requires five
elements:

       (1) the evidence must appear on its face to have existed at the
       time of trial but be discovered after trial; (2) the motion 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. 51, 52-53, 781 P.2d 28, 29-30 (1989) (citation omitted);
accord Ariz. R. Crim. P. 32.1(e). Here, we are concerned with the second
element: Whether Salerno’s petition is sufficient in alleging facts from
which the court could conclude that he was diligent in discovering the new
evidence.

¶7            On review of the record, we hold the superior court erred in
ruling that Salerno’s petition failed to present sufficient factual support
with respect to the element of diligence regarding discovery of the newly
discovered evidence. Salerno alleges in his petition that the newly
discovered evidence was obtained by him through the inspection of the
prosecutor’s file, which only became possible in 2012 due to his § 1983
action. As alleged by Salerno and as supported by the documentation
included in the appendix to his petition, Salerno previously requested
production of the victim’s business records from the State before trial in
2001, but the prosecution denied their existence. Salerno further sought to
obtain the records directly from the victim, but the victim claimed they
could not be produced due to an unrelated burglary of the victim’s
premises. During a civil proceeding in 2009, Salerno sought the records


                                        3
                            STATE v. SALERNO
                            Decision of the Court

from the investigating law enforcement agency, but was told all records
obtained by the investigator had been delivered to the prosecutor before
Salerno’s criminal trial. In the same civil proceeding, however, the
prosecutor in the criminal case denied receiving any undisclosed records
from the investigator. It was only when Salerno was finally given access to
the prosecutor’s file in 2012 through his § 1983 action that the undisclosed
business records and other documents giving rise to the claims of newly
discovered evidence were obtained by him. Together, these facts present a
colorable showing of reasonable diligence by Salerno in securing the
undisclosed business records to entitle him to an evidentiary hearing on his
claims of newly discovered evidence of innocence and a Brady violation.
See Brady v. Maryland, 373 U.S. 83, 87 (1963).

¶8             The same is equally true of the discovery of the letter from the
prosecutor to Salerno’s trial counsel offering a formal plea agreement with
a stipulation to probation. Included in the appendix to the petition for post-
conviction relief is an affidavit by Salerno stating that his trial counsel never
informed him of the proposed plea agreement and that if he had been
informed of the offer he would have accepted it. Because Salerno never had
access to the prosecutor’s file in which the letter was found before 2012, no
basis exists for concluding he was not diligent in bringing the claim of his
trial counsel’s ineffective assistance regarding the plea offer to the court’s
attention before the instant proceedings. See Missouri v. Frye, 566 U.S. 133,
147 (2012) (holding that counsel’s representation may be found
constitutionally deficient for failure to timely communicate a formal plea
offer to a client); State v. Donald, 198 Ariz. 406, 411, ¶ 9, 10 P.3d 1193, 1198
(App. 2000) (recognizing defense counsel’s duty to communicate the terms
and relative merits of a plea offer).

¶9            For the foregoing reasons, we grant review and relief, and
remand this matter to the superior court for further proceedings consistent
with this decision.




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



                                         4
