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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      ANTONIO AGUILAR, Petitioner.

                         No. 1 CA-CR 14-0777 PRPC
                              FILED 11-29-2016


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2005-008712-001
                  The Honorable M. Scott McCoy, Judge

                  REVIEW GRANTED; RELIEF DENIED


                               APPEARANCES

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

Antonio Aguilar, Phoenix
Petitioner Pro Se



                       MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.
                            STATE v. AGUILAR
                            Decision of the Court

O R O Z C O, Judge:

¶1             Antonio Aguilar petitions for review of the summary
dismissal of his second notice of post-conviction relief and his motion for
rehearing. We have considered the petition for review and, for the reasons
stated, grant review and deny relief.

¶2            A jury convicted Aguilar of theft of means of transportation,
and he was sentenced as a repetitive offender to a prison term of 11.25 years.
This court affirmed his conviction and sentence on appeal. State v. Aguilar,
1 CA-CR 06-0175 (Ariz. App. Jan. 25, 2007) (mem. decision).

¶3            The superior court dismissed Aguilar’s first petition for post-
conviction relief in 2008. In 2014, Aguilar filed an untimely and successive
notice of post-conviction relief indicating intent to raise a claim of newly
discovered evidence with respect to a violation of his right against double
jeopardy. Finding Aguilar failed to state a claim for which relief could be
granted in an untimely and successive post-conviction relief proceeding,
the superior court summarily dismissed the notice.

¶4           We review the summary dismissal of a post-conviction relief
proceeding for abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17
(2006). Furthermore, we may affirm the superior court’s ruling “on any
basis supported by the record.” State v. Robinson, 153 Ariz. 191, 199 (1987).

¶5             The superior court properly dismissed Aguilar’s notice of
post-conviction relief. Although a claim of newly discovered material facts
is one that can be raised in an untimely or successive post-conviction relief
proceeding, Ariz. R. Crim. P. 32.2(b), Aguilar’s factual allegations fail to
meet the requirements for a claim of newly discovered material facts. See
Ariz. R. Crim. P. 32.1(e). Specifically, the alleged fact that he was previously
indicted and arraigned on the same offense was undisputedly within his
knowledge when he was re-indicted on that offense. Consequently, under
no circumstances can it be said to be a fact that was only “discovered after
the trial.” See Ariz. R. Crim. P. 32.1(e)(1). And because the notice of post-
conviction relief was properly dismissed, no basis for relief exists for the
manner in which the superior court addressed Aguilar’s motion for
rehearing.




                                       2
                 STATE v. AGUILAR
                 Decision of the Court

¶6   Accordingly, although we grant review, we deny relief.




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




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