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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        SHANE AVINGTON, Petitioner.

                          No. 1 CA-CR 14-0775 PRPC
                               FILED 1-10-2017


     Petition for Review from the Superior Court in Maricopa County
                          No. CR2005-034814-001
                              CR2005-121081-001
              The Honorable Crane McClennen, Judge, Retired

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

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

Law Office of Harriette P. Levitt, Tucson
By Harriette P. Levitt
Counsel for Petitioner
                           STATE v. AVINGTON
                            Decision of the Court


                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen, Judge Margaret H. Downie and Chief
Judge Michael J. Brown delivered the decision of the court.


PER CURIAM:

¶1          Shane Avington petitions for review of the superior court's
summary dismissal of his successive petition for post-conviction relief. We
have considered the petition for review and, for the reasons stated, grant
review and deny relief.

¶2             In 2006, Avington was convicted of one count of aggravated
assault with three prior felony convictions in Maricopa County Superior
Court Cause No. CR2005-121081-001 and a second count of aggravated
assault with three prior felony convictions in Maricopa County Superior
Court Cause No. CR2005-034814-001. The superior court sentenced him as
a repetitive offender to consecutive, aggravated 15-year prison terms. The
convictions and sentences were affirmed on appeal. State v. Avington, 1 CA-
CR 06-0583, 2007 WL 5248859 (Ariz. App. Dec. 20, 2007) (mem. decision);
State v. Avington, 1 CA-CR 06-0584, 2008 WL 3864071 (Ariz. App. Mar. 20,
2008) (mem. decision).

¶3             Avington timely filed for post-conviction relief in the two
cases, raising claims of ineffective assistance of trial counsel, prosecutorial
misconduct and disproportionate sentences. The superior court summarily
dismissed the petitions, and this court denied review.

¶4            In 2014, Avington filed a pair of successive petitions for post-
conviction relief, alleging that recently obtained medical information was
newly discovered evidence relevant to his sentences. Specifically, he
asserted that in 2011 he was diagnosed with post-traumatic stress disorder
and that a causal connection exists between this diagnosis and the
assaultive behavior that gave rise to his convictions. The superior court
summarily denied relief based on Avington's failure to provide affidavits
or other evidence to support why these facts could not have been produced
at the trial phase through reasonable diligence. This petition for review
followed.

¶5           On review, Avington argues he is entitled to an evidentiary
hearing on his claim because he presented newly discovered evidence that



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                           STATE v. AVINGTON
                            Decision of the Court

constitutes a significant mitigating factor that should have been considered
at his sentencing. We review a superior court's ruling on a petition for post-
conviction relief for abuse of discretion. State v. Bennett, 213 Ariz. 562, 566,
¶ 17 (2006).

¶6              Avington is correct that a recently discovered medical
diagnosis can constitute newly discovered evidence pursuant to Arizona
Rule of Criminal Procedure 32.1(e). State v. Bilke, 162 Ariz. 51, 53 (1989). To
state a colorable claim for such relief, however, Avington was required to
show the evidence existed at the time of trial but could not have been
discovered through the exercise of reasonable diligence. Ariz. R. Crim. P.
32.1(e); State v. Saenz, 197 Ariz. 487, 489, ¶ 7 (App. 2000) (evidence not newly
discovered unless "it could not have been discovered and produced at trial
through reasonable diligence").

¶7             In support of his contention that his diagnosis could not have
been discovered earlier, Avington argues he did not learn of his mental
illness until 2011. But that does not establish that his diagnosis could not
have been discovered before trial through the exercise of reasonable
diligence. The psychological evaluation Avington submitted with his
petition detailed a long history of childhood abuse that, according to the
psychologist, caused his mental illness. The evaluator also cataloged a long
list of criminal offenses, which the evaluator characterized as "years of
antisocial behavior," that preceded his convictions in these cases. Avington
offers no explanation why, through the exercise of reasonable diligence, his
mental illness could not have been discovered prior to trial.

¶8             Indeed, Avington suggests that his mental condition could
have been discovered if his trial counsel had exercised due diligence. A
claim of ineffective assistance of counsel made pursuant to Rule 32.1(a),
however, cannot be raised in an untimely proceeding such as this one. Ariz.
R. Crim. P. 32.4(a). Accordingly, the superior court did not abuse its
discretion in summarily dismissing the petitions.

¶9            Avington argues, however, that he should not be held
accountable for the ineffective assistance of his trial counsel. Avington's
argument essentially is that he recently discovered evidence his counsel
should have discovered before trial. Even assuming such a claim is
cognizable under Rule 32.1(e), which we do not decide, it nonetheless fails
because Avington does not provide meritorious reasons why he could not
have raised it in his earlier petitions for post-conviction relief. Absent such
a showing, a claim raised in an untimely or successive petition is subject to
summary dismissal as precluded. Ariz. R. Crim. P. 32.2(b); see also Ariz. R.


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                          STATE v. AVINGTON
                           Decision of the Court

Crim. P. 32.2(c) ("any court on review of the record may determine and hold
that an issue is precluded regardless of whether the State raises
preclusion"). The superior court did not err in summarily dismissing
Avington's successive petition for post-conviction relief.

¶10          For these reasons, we grant review but deny relief.




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




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