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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 JESUS OSCAR MERAZ LEON, Petitioner.

                         No. 1 CA-CR 15-0422 PRPC
                             FILED 4-25-2017


    Petition for Review from the Superior Court in Maricopa County
                           No. CR0000-149150
                  The Honorable Jo Lynn Gentry, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Jesus Oscar Meraz Leon, Florence
Petitioner
                              STATE v. LEON
                            Decision of the Court




                       MEMORANDUM DECISION

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


B E E N E, Judge:

¶1            Petitioner Jesus Oscar Meraz Leon petitions this court for
review from the denial of his petition for post-conviction deoxyribonucleic
acid (“DNA”) testing pursuant to Arizona Rule of Criminal Procedure
32.12(c) and Arizona Revised Statutes (“A.R.S.”) section 13-4240(B) (2000).1
We review the denial of a request for post-conviction DNA testing for abuse
of discretion. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19, 278 P.3d 1276, 1280
(2012).

¶2           A jury convicted Leon of armed burglary, sexual assault and
attempted sexual assault in 1985. Leon committed the offenses with an
accomplice. The trial court sentenced him to two consecutive life sentences
for armed burglary and sexual assault and a concurrent term of twenty
years’ imprisonment for attempted sexual assault. The Arizona Supreme
Court affirmed Leon’s convictions and sentences in 1987. In the intervening
years, Leon has sought relief in over fourteen post-conviction relief
proceedings.

¶3            Leon argues he is entitled to DNA testing of seminal fluid,
spermatozoa and a single hair investigators found in 1985. A person
convicted of a felony may petition at any time for DNA testing of evidence
in the possession or control of the court or the State, if it is related to the
investigation or the prosecution that resulted in the conviction, and it may
contain biological evidence. Ariz. R. Crim. P. 32.12(a); A.R.S. § 13-4240(A).
A court “shall” order DNA testing if the petitioner meets all the




1      Rule 32.12 and A.R.S. § 13-4240 are effectively the same.




                                       2
                               STATE v. LEON
                             Decision of the Court

requirements of Rule 32.12(c) or A.R.S. § 13-4240(B).2 It will suffice to note,
that among those requirements is that the evidence must still exist and be
in a condition that allows DNA testing. Further, the evidence must not have
been previously subjected to DNA testing or not previously subjected to the
specific testing the petitioner now requests, and the additional testing may
resolve an issue not resolved by prior testing. Ariz. R. Crim. P. 32.12(c);
A.R.S. § 13-4240(B).

¶4              We deny relief. First, Leon offers no proof the evidence still
exists more than thirty years after investigators first collected it, or, if it does
exist, that it remains in a condition that allows DNA testing. Second, Leon
previously petitioned for DNA testing in 2004. The superior court’s ruling
on that first petition is not contained in the record on review and there is
nothing in the record to suggest the court granted the petition. Even so, if
the trial court failed to rule on the motion, it was denied by operation of
law. State v. Hill, 174 Ariz. 313, 323, 848 P.2d 1375, 1385 (1993). Regardless
of whether the court denied the petition or if it was denied by operation of
law, if Leon wished to challenge the failure to grant that earlier petition for
testing, he had an obligation to file a timely petition for review pursuant to
Rule 32.9(c).

¶5             We grant review and deny relief.




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




2      A court “may” order DNA testing if the petitioner meets the
requirements of Rule 32.12(d) or A.R.S. § 13-4240(C). Leon does not seek
testing under either of these provisions.



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