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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    ANGEL DAVID SMILEY, Petitioner.

                         No. 1 CA-CR 15-0808 PRPC
                              FILED 8-1-2017


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2006-013269-004 DT
                  The Honorable Hugh E. Hegyi, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Angel David Smiley, Florence
Petitioner



                       MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Michael J. Brown joined.
                            STATE v. SMILEY
                           Decision of the Court

C A M P B E L L, Judge:

¶1             Angel David Smiley petitions for review from the dismissal
of his petition for post-conviction relief. See Ariz. R. Crim. P. 32. We have
considered the petition for review and, for the reasons stated, grant review
and deny relief.

¶2            In 2008, a jury convicted Smiley of first-degree murder,
attempted armed robbery, burglary in the first degree, and conspiracy to
commit armed robbery. After considering mitigating and aggravating
circumstances, the trial court imposed a natural life term of imprisonment
for the murder conviction. The court also imposed aggravated sentences of:
10 years for attempted armed robbery and 15 years each for the burglary
and conspiracy convictions to be served concurrent with each other, but
consecutive to the life sentence. On direct appeal, this court affirmed
Smiley’s convictions and sentences. State v. Smiley, 1 CA-CR 08-0688, 2009
WL 2634768 (Ariz. App. Aug. 27, 2009) (mem. decision).

¶3             Smiley subsequently sought post-conviction relief, raising a
claim of ineffective assistance of counsel, denial of a motion to sever Smiley
from the co-defendant, and jury misconduct. The trial court summarily
dismissed the petition. Smiley sought review in this court, which denied
review.

¶4           Almost three years later, Smiley filed a successive and
untimely petition for post-conviction relief, raising a claim of newly
discovered evidence. See Ariz. R. Crim. P. 32.1(e). Smiley argued his recent
diagnosis of post-traumatic stress disorder (“PTSD”) constituted newly
discovered evidence pursuant to State v. Bilke, 162 Ariz. 51 (1989).
According to Smiley, he had the condition at the time he committed the
offenses and had the trial court been aware of his PTSD, the court would
have imposed more lenient sentences. The trial court dismissed the petition,
and Smiley timely sought review.

¶5            The trial court’s dismissal order clearly identified and
correctly ruled upon the merits of Smiley’s petition. Smiley argues that his
newly diagnosed mental condition, PTSD, presents a colorable claim of
newly discovered evidence and should entitle him to an evidentiary
hearing. He bases this rationale on the court’s holding in State v. Bilke, 162
Ariz. 51. The court in Bilke found that a new diagnosis of PTSD was “newly-
discovered evidence” because it was an unrecognized medical condition
that could not have been diagnosed at the time of sentencing in 1974. Id. at
53. Here, Smiley could have presented the PTSD evidence at the time of his


                                      2
                         STATE v. SMILEY
                        Decision of the Court

sentencing, and was not precluded from doing so. Accordingly, the
diagnosis is not newly discovered evidence.

¶6         As a result, although we grant review, we deny relief.




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




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