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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   MARK ANDREW TUCKER, Petitioner.

                         No. 1 CA-CR 18-0365 PRPC
                              FILED 9-13-2018


    Petition for Review from the Superior Court in Maricopa County
                      Nos. CR2012-128385-001 DT
                            CR2012-153833-002 DT
                 The Honorable Karen A. Mullins, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By E. Catherine Leisch
Counsel for Respondent

Mark Andrew Tucker, Buckeye
Petitioner
                             STATE v. TUCKER
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge James P. Beene joined.



C R U Z, Presiding Judge:

¶1             Mark Andrew Tucker petitions this court for review from the
dismissal of his petition for post-conviction relief filed pursuant to Arizona
Rule of Criminal Procedure 32 (“Rule 32”). We have considered the petition
and, for the reasons stated, grant review but deny relief.

¶2            In 2013, Tucker pled guilty to one count each of burglary in
the second degree, false reporting to a law enforcement agency, possession
of burglary tools, possession of dangerous drugs for sale, and possession of
drug paraphernalia. Tucker also admitted to two prior felony convictions.
Four years after the court imposed mitigated sentences, Tucker filed a
notice of post-conviction relief, raising claims of newly discovered evidence
and ineffective assistance of counsel (“IAC”). Tucker argued his various
health problems constituted newly discovered evidence, and, had the court
been aware of the ailments, it would have imposed more lenient sentences.
Regarding his IAC claim, Tucker claimed counsel deficiently failed to
request “mitigation hearings or med. exams” after learning from Tucker on
the day of sentencing that Tucker suffered from hepatitis C. 1 In his notice,
Tucker also requested appointment of Rule 32 counsel. The trial court did
not appoint counsel and summarily dismissed the notice. Tucker
unsuccessfully moved for reconsideration, and this timely petition for
review followed.

¶3            We have jurisdiction pursuant to Arizona Revised Statutes
section 13-4239(C); see also Ariz. R. Crim. P. 32.9(c).




1     Tucker’s notice incorrectly refers to October 4, 2012 as the sentencing
date. He was sentenced on October 4, 2013.



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                              STATE v. TUCKER
                             Decision of the Court

                                 DISCUSSION

¶4           Tucker argues he was entitled to court-appointed counsel and
an evidentiary hearing on his post-conviction relief claim of newly
discovered evidence.2 We disagree.

¶5             A defendant seeking post-conviction relief after a guilty plea
must generally file a notice within 90 days of sentencing. Ariz. R. Crim. P.
32.4(a)(2)(C). Although untimely claims of newly discovered evidence made
pursuant to Rule 32.1(e) are not necessarily precluded, Ariz. R. Crim. P.
32.4(a)(2)(A), when raised, the defendant “must . . . explain the reasons . . . for
not raising the claim in a timely manner.” Ariz. R. Crim. P. 32.2(b); see also
Ariz. R. Crim. P. 32.l(e). “If the notice does not . . . provide reasons why
defendant did not raise the claim in a previous petition or in a timely
manner, the court may summarily dismiss the notice.” Ariz. R. Crim. P.
32.2(b). We review the summary dismissal of a petition for post-conviction
relief for abuse of discretion. See State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19
(2012).

¶6            Here, the superior court summarily dismissed Tucker’s
evidentiary claims in part because he failed to explain in his Rule 32 notices
why the “newly discovered” arterial “blockage,” thyroid nodule, and
diagnosis of hepatitis C could not have been raised earlier through
reasonable diligence.3 Our review of the notices supports the court’s
rationale. For example, Tucker alleged he suffered four heart attacks
during the two months after sentencing—treatment of which revealed a
99% blockage of his artery—yet he did not state the reasons for the four-
year delay in seeking post-conviction relief on this basis.

¶7           Tucker’s reliance on State v. Bilke and State v. Cooper is
inapposite. In Bilke, the defendant was entitled to a Rule 32 evidentiary
hearing to challenge his prison sentence because at the time he committed

2       Tucker does not challenge the superior court’s summary dismissal
of his IAC claim. He has, therefore, abandoned and waived this issue, and
we do not address it. See State v. Rodriguez, 227 Ariz. 58, 61, ¶ 12 n.4 (App.
2010) (declining to address argument not presented in petition).

3      To the extent Tucker raised a claim of newly discovered evidence
regarding his hepatitis C, such a claim fails because he knew at sentencing
that he suffered from the ailment; indeed, Tucker based his claim of
ineffective assistance of counsel on his attorney’s alleged failure to inform
the court at sentencing that Tucker had hepatitis C.



                                        3
                             STATE v. TUCKER
                            Decision of the Court

the offenses and was sentenced, he suffered from post-traumatic stress
disorder—a condition that was not diagnosed, or medically recognized
until well after his trial. See 162 Ariz. 51, 53 (1989). By contrast, in Cooper,
the defendant presented a colorable claim of newly discovered evidence
based on his post-sentencing diagnosis of a terminal illness. 166 Ariz. 126,
128-30 (App. 1990). Tucker, on the other hand, did not contend that his
coronary, thyroid, and liver ailments were not recognized medical
conditions on May 30 and October 13, 2012, the dates of the offenses, and
he did not allege that his thyroid and liver conditions are terminal.4 The
court’s summary dismissal of his petition for post-conviction relief was not
an abuse of discretion.

¶8            Similarly, Tucker’s contention that the superior court erred in
denying his request for court-appointed counsel also fails. Since Tucker’s
Rule 32 notice was facially without merit, he was not entitled to counsel.
State v. Harden, 228 Ariz. 131, 134, ¶ 11 (App. 2011). Tucker fails to establish
the superior court’s dismissal order constitutes an abuse of discretion.

                               CONCLUSION

¶9            Accordingly, although we grant review, relief is denied.




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




4      Attached to the petition for review is an appendix titled “Medical
Information on Hepatitis-C.” The attachments were not part of the record
below, and as such they are not properly before us. Therefore, we do not
consider said documents. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980)
(issues not presented in superior court may not be first raised in petition for
review).


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