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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       PHILIP LEE CARSON, Petitioner.

                          No. 1 CA-CR 15-0691 PRPC
                               FILED 9-21-2017


     Petition for Review from the Superior Court in Maricopa County
                            No. CR 1990-005235
                 The Honorable Warren J. Granville, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

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

Philip Lee Carson, Florence
Petitioner



                        MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.
                           STATE v. CARSON
                           Decision of the Court

C R U Z, Judge:

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

¶2            A jury found Carson guilty of first-degree murder,
kidnapping, theft, five counts of aggravated assault, and two counts of
sexual assault. On June 12, 1992, the superior court sentenced Carson to life
imprisonment for the murder offense, to be followed by concurrent prison
terms for the remaining offenses. Carson appealed, and except for
correcting a clerical mistake related to the sentence for one of the sexual
assault offenses, this Court affirmed in all respects.

¶3             On December 13, 1995, the superior court dismissed Carson’s
first Rule 32 proceeding, in which Carson raised a claim of ineffective
assistance of trial counsel, and he argued in part that, although the trial
evidence was sufficient to sustain a manslaughter conviction, it was not
sufficient to sustain his conviction for first-degree murder. After his parole
hearing in 2015, Carson filed an untimely and successive notice for post-
conviction relief, arguing newly discovered evidence obtained at the parole
hearing likely would have affected his first-degree murder conviction and
resulting life sentence. Specifically, Carson claimed he learned for the first
time at the parole hearing that the murder victim had a “known reputation”
for having two guns in the truck he was driving immediately before he
exited the vehicle and was confronted and shot by Carson. According to
Carson, this evidence of the victim’s guns would have supported his self-
defense argument at trial. Carson also argued the State violated his due
process rights and its obligations under Brady1 to disclose before trial
evidence of the victim’s reputation regarding the guns. Finally, Carson
alleged that witnesses at the parole hearing provided testimony that
differed from their testimony at trial, resulting in his conviction and denial
of parole.

¶4             The superior court summarily dismissed the notice. In doing
so, the court correctly rejected Carson’s assertion that the successive notice

1     Brady v. Maryland, 373 U.S. 83, 87 (1963) (“We now hold that the
suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of the
prosecution.”).


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                            STATE v. CARSON
                            Decision of the Court

was timely based on his pre-September 30, 1992, sentencing. See Moreno v.
Gonzalez, 192 Ariz. 131, 135, ¶ 22, 962 P.2d 205, 209 (1998) (noting the
Arizona Supreme Court ordered that the 1992 amendments to Rule 32 were
“applicable to all post-conviction relief petitions filed on and after
September 30, 1992, except that the time limits of 90 and 30 days imposed
by Rule 32.4 shall be inapplicable to a defendant sentenced prior to
September 30, 1992, who is filing his first petition for post-conviction
relief.”) (quoting Supreme Court Order, 171 Ariz. XLIV (1992)). The court
also correctly found Carson failed to explain how evidence of the victim’s
guns was newly discovered because Carson did not explain how the
evidence could not have been produced at trial with reasonable diligence.
See State v. Turner, 92 Ariz. 214, 221, 375 P.2d 567, 571 (1962) (stating that
when moving for a new trial on the ground of newly discovered evidence,
the accused “must show by affidavit or testimony in court, that due
diligence was used to ascertain and produce the evidence in time for use at
his trial” and “account for his failure to produce the evidence by stating
explicitly the details of his efforts to ascertain and procure it”). The court
additionally, and correctly, determined Carson failed to establish the
materiality of the evidence, a prerequisite to establish both a colorable claim
of newly discovered evidence and a Brady violation. Ariz. R. Crim. P.
32.1(e) (stating newly discovered facts must be material); State v. Bilke, 162
Ariz. 51, 52-53, 781 P.2d 28, 29-30 (1989) (providing the requirements for a
colorable claim in a newly discovered evidence case); Brady, 373 U.S. at 87
(holding “suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material
either to guilt or to punishment”). Finally, the court correctly dismissed
Carson’s concern about the variance in witness testimony, finding the
alleged discrepancies would not have materially affected the trial’s
outcome.

¶5            On review, Carson appears to challenge the superior court’s
findings that Carson failed to establish the materiality of the “newly
discovered evidence” and of the discrepancies regarding witnesses’ trial
testimony and testimony twenty-three years later at the parole hearing.
Carson speculates that, had the jury considered the evidence of the murder
victim’s guns, it would have convicted him not of first-degree murder, but
a lesser-included offense.

¶6             The superior court dismissed the notice of post-conviction
relief in an order that clearly identified and correctly ruled upon the issues
raised. Further, the court did so in a thorough, well-reasoned manner that
will allow any future court to understand the court’s rulings. Under these
circumstances, “No useful purpose would be served by this court rehashing


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                           STATE v. CARSON
                           Decision of the Court

the trial court’s correct ruling in a written decision.” State v. Whipple, 177
Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). Therefore, we adopt the
superior court’s ruling.

¶7            To the extent Carson raises arguments for the first time in his
petition for review (i.e., that he should have been tried by a judge, not a
jury), we do not address them. A petition for review may not present issues
not first presented to the superior court. Ariz. R. Crim. P. 32.9(c)(1)(ii)
(requiring that a petition for post-conviction relief contain “issues which
were decided by the trial court and which the defendant wishes to present
to the appellate court for review”); State v. Ramirez, 126 Ariz. 464, 467, 616
P.2d 924, 927 (App. 1980); see State v. Swoopes, 216 Ariz. 390, 403, ¶¶ 40-41,
166 P.3d 945, 958 (App. 2007) (holding there is no review for fundamental
error in a post-conviction relief proceeding).

¶8            For the foregoing reasons, we grant review but deny relief.




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




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