                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 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.

                   BRIAN KEITH STALLINGS, Petitioner.

                         No. 1 CA-CR 13-0321 PRPC
                              FILED 12-11-2014


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 1991-003105
                  The Honorable M. Scott McCoy, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Brian Keith Stallings, Buckeye
Petitioner



                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge John C. Gemmill joined.
                            STATE v. STALLINGS
                             Decision of the Court

W I N T H R O P, Judge:

¶1             Petitioner, Brian Keith Stallings (“Stallings”), seeks review of
the trial court’s summary dismissal of his petition for post-conviction relief,
filed pursuant to Arizona Rule of Criminal Procedure 32.1. Absent an abuse
of discretion or error of law, this court will not disturb a trial court’s ruling
on a petition for post-conviction relief. See State v. Gutierrez, 229 Ariz. 573,
577, ¶ 19, 278 P.3d 1276, 1280 (2012). Finding no such error, this court grants
review, but denies relief.

¶2             In 1993, Stallings pled guilty to first degree murder, armed
robbery, second degree burglary, and theft. The trial court sentenced
Stallings to two terms of life imprisonment without the possibility of parole
until the completion of twenty-five calendar years, and two terms of twenty
years’ imprisonment, with all four terms to be served consecutively.

¶3            Before the court is a petition for review from the trial court’s
summary dismissal of Stallings’ fifth post-conviction relief proceedings.
The prior post-conviction relief proceedings were summarily dismissed on
June 20, 1994; May 16, 1997; April 30, 2012; and November 30, 2012. In the
present proceeding, Stallings alleged in his petition for post-conviction
relief that he was entitled to relief because his Fifth Amendment right
against double jeopardy was violated because he was charged in a
duplicitous indictment. Specifically, Stallings claimed the indictment was
duplicitous because it charged first degree premeditated and felony murder
in one count. He further asserted he was entitled to raise this claim in his
successive petition because it was based on newly discovered evidence, i.e.,
the indictment, which he claimed he had just obtained from the court.

¶4             We review for an abuse of discretion the summary dismissal
of a petition for post-conviction relief. State v. Bennett, 213 Ariz. 562, 566,
¶ 17, 146 P.3d 63, 67 (2006). There was no error by the trial court in
summarily dismissing the petition for review. A claim of defect in the
indictment is not a claim that is exempt from preclusion under Rule 32.2
and therefore may not be raised in a successive petition for post-conviction
relief. See Ariz. R. Crim. P. 32.2(b). Although a claim of newly discovered
evidence may be raised in a successive petition, to be entitled to post-
conviction relief based on newly discovered evidence, a petitioner must
show the evidence was discovered after trial although it existed before trial;
the evidence could not have been discovered and produced at trial or on
appeal through reasonable diligence; the evidence is neither merely
cumulative nor used solely for impeachment; the evidence is material; and
the evidence probably would have changed the verdict or sentence. See


                                       2
                           STATE v. STALLINGS
                            Decision of the Court

State v. Saenz, 197 Ariz. 487, 489, ¶ 7, 4 P.3d 1030, 1032 (App. 2000); see also
Ariz. R. Crim. P. 32.1(e). As the trial court correctly observed in dismissing
the petition, Stallings presented no support as to why the claimed “new
evidence” could not have been discovered earlier through reasonable
diligence.

¶5             Moreover, even if Stallings had made an adequate showing of
newly discovered evidence to avoid preclusion under Rule 32.2, he still
would not be entitled to relief based on his claim of a defective indictment.
Contrary to his contention, including charges of first degree premeditated
murder and felony murder in a single count does not make the indictment
duplicitous. Premeditated murder and felony murder are not separate
offenses; rather, they are simply two forms of the same offense. State v.
Tucker, 205 Ariz. 157, 167, ¶ 50, 68 P.3d 110, 120 (2003). In addition, by
pleading guilty, Stallings waived all non-jurisdictional defenses, including
any and all defenses, errors, and defects that occurred prior to the plea. See
State v. Quick, 177 Ariz. 314, 316, 868 P.2d 327, 329 (App. 1993). The waiver
of non-jurisdictional defects includes deprivations of constitutional rights.
Tollett v. Henderson, 411 U.S. 258, 267 (1973) (“[A] guilty plea represents a
break in the chain of events which has preceded it in the criminal process.
When a criminal defendant has solemnly admitted in open court that he is
in fact guilty of the offense with which he is charged, he may not thereafter
raise independent claims relating to the deprivation of constitutional rights
that occurred prior to the entry of the guilty plea.”).

¶6           Based on the foregoing, we grant review of the petition, but
deny relief.




                                  :gsh




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