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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

      GERARDO EDMUNDO ANDRADA-PASTRANO, Petitioner.

                         No. 1 CA-CR 16-0499 PRPC
                                FILED 9-5-2017


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 1991-007525
                The Honorable Warren J. Granville, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney's Office, Phoenix
By Lisa Marie Martin
Counsel for Respondent

Gerardo Edmundo Andrada-Pastrano, Mesa
Petitioner



                       MEMORANDUM DECISION

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

J O H N S E N, Judge:

¶1            Gerardo Edmundo Andrada-Pastrano petitions this court for
review from the dismissal of his petition for post-conviction
deoxyribonucleic acid ("DNA") testing, filed pursuant to Arizona Rule of
Criminal Procedure 32.12. We have considered the petition for review and,
for the reasons stated, grant review and deny relief.

                FACTS AND PROCEDURAL HISTORY

¶2            Approximately 25 years ago, Andrada-Pastrano was charged
with one count of sexual conduct with a minor, a Class 2 felony and
dangerous crime against children, and one count of sexual conduct with a
minor, a Class 6 felony. The State alleged that on August 29, 1991, Andrada-
Pastrano and his friend took two sisters, ages 13 and 15, to a motel room,
served them alcohol, and then had sex with them.

¶3            Andrada-Pastrano pled guilty to attempted sexual conduct
with a minor, a Class 3 felony and dangerous crime against children. Before
sentencing, however, he asked to withdraw from the plea agreement.
Among other stated reasons, Andrada-Pastrano asserted that the
complaining witnesses had "recently filed similar charges against two other
men." The court appointed other counsel for Andrada-Pastrano and held a
hearing. Andrada-Pastrano and his trial counsel testified. After the
hearing, the court granted the motion and allowed Andrada-Pastrano to
withdraw from the plea agreement.1

¶4            At Andrada-Pastrano's request, the court appointed him an
investigator, and the parties prepared for trial. Andrada-Pastrano filed a
notice of disclosure in which he listed the other two men by name as
witnesses. The younger sister had accused these two men of sexually
assaulting her on or about February 22, 1992, and Andrada-Pastrano
believed the accusations were false. The record also reflects that on August
26, 1992, the State served a subpoena duces tecum seeking "all medical
records regarding" medical treatment received by the younger sister on
February 22 or 23, 1992.

¶5           Andrada-Pastrano ultimately again decided to resolve the
case by plea agreement, and pled no contest to attempted sexual abuse, a


1     Andrada-Pastrano has not provided a transcript of this proceeding.




                                     2
                    STATE v. ANDRADA-PASTRANO
                         Decision of the Court

Class 4 felony and dangerous crime against children.2 The parties
stipulated to a seven-year term of probation with six months' incarceration.

¶6            Before the sentencing, Andrada-Pastrano met with the
presentence report writer and admitted to having sex with the older sister.
He said that both girls had consented to the sex. The writer noted that
although Andrada-Pastrano "admits that what he did was wrong, by
having sex with a minor, he did not believe that [the older sister] was only
fifteen years old." Further, according to the presentence report, Andrada-
Pastrano "mentioned that these same girls have also been responsible for
accusing two other men of rape on a previous occasion. One of those men
nearly had their parole revoked until [the younger sister] retracted her
statement." On December 7, 1992, the superior court accepted the plea
agreement and imposed a seven-year term of probation, with four months'
incarceration. Andrada-Pastrano did not file a notice of post-conviction
relief.

¶7            Approximately 14 years later, Andrada-Pastrano commenced
his first post-conviction relief proceeding by filing documents titled
"Request for Preliminary Injunction" and "Oral Agreement of
Unconscionable Cluase [sic] in CR 91-07525 and Contract Frustration."
Though not entirely clear, it appears that Andrada-Pastrano was seeking
relief from sex-offender registration required by the terms of his no-contest
plea. The superior court denied relief in February 2007.

¶8            In January 2008, Andrada-Pastrano filed a notice of post-
conviction relief. He asserted that his failure to timely file his petition was
not his fault. He also raised claims of newly discovered evidence,
ineffective assistance of counsel, involuntary plea, actual innocence and
prosecutorial misconduct. His claims rested on his contention that
evidence existed that cast doubt on the credibility of the younger sister—
the "alleged victims [] where [sic] prone to make false allegations"—and the
State had withheld this evidence. Appointed counsel later filed a
supplemental petition. In its response, the State vigorously disputed
Andrada-Pastrano's contention that the medical records the State had
subpoenaed in his case related to the younger sister's allegations against the
other two men. The State called those allegations "completely unfounded"
and "another lie." After addressing the claims raised, the superior court
denied relief. Andrada-Pastrano sought review by this court, but review



2      Andrada-Pastrano has not provided a transcript of the change-of-
plea proceeding.


                                      3
                    STATE v. ANDRADA-PASTRANO
                         Decision of the Court

was denied. State v. Past[r]ano, 1 CA-CR 09-0203 PRPC (App. Mar. 29, 2010)
(order).

¶9            In October 2010, Andrada-Pastrano filed his third post-
conviction relief proceeding. The superior court addressed the claims and
summarily dismissed them. Andrada-Pastrano moved for rehearing, but
the motion was denied. This court denied review. State v. Andrada-Pastrano,
1 CA-CR 10-0979 PRPC (App. Sep. 20, 2012) (order).3

¶10            In August 2011, Andrada-Pastrano filed his fourth post-
conviction relief proceeding, essentially reiterating claims he had presented
before. He argued that by subpoenaing the younger sister's medical records
for use in its case against him, the State acted deceitfully and coercively,
suggesting that the State sought to use the records to argue that the younger
sister sought treatment in February 1992 for acts that Andrada-Pastrano
committed against her the prior fall. For the first time, he referenced a
police report documenting a complaint by the younger sister that she was
raped on February 23, 1992, by the two other men. He noted that according
to the police report following that alleged rape, the younger sister was
transported for medical treatment, and a rape kit was collected. The
superior court identified and ruled upon the claims raised in a thorough,
well-reasoned manner and summarily dismissed the proceeding.
Andrada-Pastrano did not seek review of this order.

¶11            In March 2016, Andrada-Pastrano filed the present petition
for post-conviction DNA, pursuant to Rule 32.12. He requested testing of
any medical evidence, including the rape kit and clothing, collected from
the younger sister on February 23, 1992, after the alleged sexual assault by
one of the other two men. He argued that his discovery of the February
1992 police report involving the younger sister disproved the State's
repeated contention that there was no evidence that the younger sister had
falsely accused anyone else of rape. He contended that, faced with having
to explain its decision to subpoena medical records for the younger sister
following the incident described in the February 1992 police report, the
State was now arguing falsely that those medical records were evidence of
"delayed treatment" of the younger sister after his own offense six months
before. He argued that DNA test results would show that the victim had
falsely accused the suspect in the unrelated case. The State responded that
Andrada-Pastrano was not entitled to relief because any evidence collected

3      Andrada-Pastrano also unsuccessfully pursued his claims in federal
District Court. Andrada-Pastrano v. Waters, No. CV-12-02401-PHX-SPL, 2015
WL 4594161 (D. Ariz. July 30, 2015).


                                     4
                   STATE v. ANDRADA-PASTRANO
                        Decision of the Court

on February 23, 1992, was unrelated to his prosecution and conviction. The
superior court agreed and denied Andrada-Pastrano's petition. This
petition for review followed.

                              DISCUSSION

¶12           On review, Andrada-Pastrano argues the superior court
abused its discretion because it "failed to adhere to the mandatory language
of Rule 32.12(c), was remiss in its duty to weigh the facts in a fair and
impartial manner," and failed to "order the mandatory hearing required by
Rule 32.12(i)." In response, the State argues that the evidence Andrada-
Pastrano seeks to have tested "was not from his case." Because the evidence
was collected after the younger sister alleged she was sexually assaulted by
another man, the State argues it "is not 'related to the investigation or
prosecution that resulted in [his] judgment of conviction.'"

¶13           A felon may file a post-conviction request for DNA testing of
certain evidence. Arizona Revised Statutes ("A.R.S.") section 13-4240 (2017)
provides in pertinent part:

      A. At any time, a person who was convicted of and sentenced
      for a felony offense and who meets the requirements of this
      section may request the forensic deoxyribonucleic acid testing
      of any evidence that is in the possession or control of the court
      or the state, that is related to the investigation or prosecution
      that resulted in the judgment of conviction, and that may
      contain biological evidence.

      B. After notice to the prosecutor and an opportunity to
      respond, the court shall order deoxyribonucleic acid testing if
      the court finds that all of the following apply:

      1. A reasonable probability exists that the petitioner would
      not have been prosecuted or convicted if exculpatory results
      had been obtained through deoxyribonucleic acid testing.

      2. The evidence is still in existence and is in a condition that
      allows deoxyribonucleic acid testing to be conducted.

      3.    The evidence was not previously subjected to
      deoxyribonucleic acid testing or was not subjected to the
      testing that is now requested and that may resolve an issue
      not previously resolved by the previous testing.



                                     5
                     STATE v. ANDRADA-PASTRANO
                          Decision of the Court

       C. After notice to the prosecutor and an opportunity to
       respond, the court may order deoxyribonucleic acid testing if
       the court finds that all of the following apply:

       1. A reasonable probability exists that either:

       (a) The petitioner's verdict or sentence would have been more
       favorable if the results of deoxyribonucleic acid testing had
       been available at the trial leading to the judgment of
       conviction.

       (b) Deoxyribonucleic acid testing will produce exculpatory
       evidence.

       2. The evidence is still in existence and is in a condition that
       allows deoxyribonucleic acid testing to be conducted.

       3.    The evidence was not previously subjected to
       deoxyribonucleic acid testing or was not subjected to the
       testing that is now requested and that may resolve an issue
       not previously resolved by the previous testing.

See also Ariz. R. Crim. P. 32.12(c).

¶14              Notwithstanding the State's current contention that the
medical evidence at issue was not "from his case," the State subpoenaed the
evidence during its prosecution of Andrada-Pastrano. Moreover, the State
does not argue that the evidence no longer exists, that it is in no condition
to be tested, or that it has already been tested. See A.R.S. § 13-4240(B)(2),
(3); -(C)(2), (3). Nevertheless, the superior court did not abuse its discretion
in denying Andrada-Pastrano's request because there was no reasonable
probability that he would not have been prosecuted or convicted if the
evidence were tested and found to be exculpatory.

¶15           We infer that Andrada-Pastrano wants to have the evidence
tested in the hope of establishing that the younger sister falsely accused
another man of sexual assault some six months after the incident that
underlay his own conviction. But even if the testing were to disprove the
victim's later allegation against the other man, there is no reasonable
probability that evidence would have changed the outcome in his own case.
This is not a situation in which DNA testing might disprove a charge, or
disqualify a defendant as the perpetrator of an offense. Even assuming the
results of the testing might have been admitted in evidence in Andrada-
Pastrano's case, the evidence, collected from the younger sister six months


                                       6
                    STATE v. ANDRADA-PASTRANO
                         Decision of the Court

after the offense to which Andrada-Pastrano pled no contest, is far too
attenuated to yield any "exculpatory results" in this case.

¶16           Finally, contrary to Andrada-Pastrano's argument, because he
could not satisfy the threshold for DNA testing, the court was not required
to hold any hearing pursuant to Rule 32.12(i). This provision simply
excepts the rule of preclusion if evidence has been tested and the DNA
testing yielded results favorable to the petitioner.

¶17             Post-conviction relief exists for that "unusual situation where
justice ran its course and yet went awry." State v. McFord, 132 Ariz. 132, 133
(App. 1982). Andrada-Pastrano has litigated his claims in the superior and
appellate courts unsuccessfully. The superior court did not abuse its
discretion when it denied the petition.

                              CONCLUSION

¶18           For the foregoing reasons, we grant review and deny relief.




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

                                        7
