NOT FOR PUBLICATION

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

HOWARD, Chief Judge.

¶1 Pursuant to separate plea agreements, petitioner Donald Simms was convicted in July 2000 of two counts of conspiracy to transport and/or possess marijuana for sale, class two felonies.2 The trial court suspended the imposition of sentence in both matters, and placed Simms on intensive probation for five years, ordering him to serve sixty days in jail as a condition of his probation. Simms now seeks review of the court's dismissal of his second petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P., and the court's denial of his motion for reconsideration of that ruling. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Simms has not sustained his burden of establishing such abuse here.

¶2 The following history is relevant to Simms's claims on review. Pursuant to CR66597, Simms was charged with conspiracy to transport and/or possess marijuana for sale, a class two felony, for an offense committed in 1999. In a February 22, 2000, letter to Simms's attorney, Rafael Gallego, the state extended a plea offer for unlawful possession of marijuana, a class four felony, with standard probation available and a sentencing cap of 2.5 years; the offer was available until March 6. In April 2000, Simms was indicted for conspiracy to transport and/or possess marijuana for sale in CR20001137, for an offense that occurred just a few days after the state made its plea offer in CR66597; Gallego also represented Simms in this matter. In July 2000, Simms entered into plea agreements in both matters, pleading guilty to two counts of conspiracy to transport/possess marijuana for sale, class two felonies, with a sentencing range of three to 12.5 years and a presumptive term of five years, and the availability of intensive probation only. The agreements also provided that Simms would cooperate with authorities if requested, and the agreement in CR20001137 further provided for the dismissal of the charges in another matter.

¶3 As noted above, the trial court placed Simms on probation, and in August 2003, pursuant to a petition to revoke probation, he admitted having violated the conditions of his probation. The court terminated his probation in both matters and ordered him returned to federal custody, where he was serving a sixty-five month sentence for the offense from which the probation violation had arisen. In 2010, Simms initiated his first Rule 32 proceeding3 in CR20001137, asserting inter alia that Gallego had been ineffective. The court denied relief in October 2010, on the ground that it previously had terminated Simms's probation in both CR66597 and CR20001137. We dismissed Simms's petition for review from the court's denial of his petition; the mandate from that order issued in April 2011.

¶4 In March 2012, Rule 32 counsel filed a petition for post-conviction relief asserting Gallego had rendered ineffective assistance by failing to tell Simms about the February 2000 plea offer in CR66597, a claim couched as one of newly discovered evidence pursuant to Rule 32.1(e), based on Simms's recent discovery of that plea offer.4 Simms also asserted Gallego had been ineffective by failing to interview witnesses and adequately prepare pretrial motions in CR20001137. He maintained this claim also was based on newly discovered evidence, albeit not exclusively from the recently discovered February 2000 plea offer. He asserted that he also recently had discovered that Gallego had been using cocaine while he represented him in CR20001137, and thus did not advise him adequately, thereby denying him the opportunity to make "a reasoned decision on whether to enter into a plea agreement [in CR20001137] or not."

¶5 Simms attached an affidavit to his petition asserting Gallego had not told him about the February 2000 plea offer; he had learned about the offer "a short time ago"; he would have accepted the offer if he had known about it; he recently had learned that Gallego did "little, if anything" to familiarize himself with CR20001137, rendering his plea in that matter involuntary; and, he recently had learned Gallego was using cocaine during the pendency of the underlying matters, depriving him of effective representation. He asked that his convictions be "vacated insofar as they affect[ed] his Federal sentence," and also asked that the "[p]lea . . . be vacated" and he be "allowed to take the original [February 2000 p]lea or proceed to [t]rial."

¶6 In a June 2012 ruling, the trial court found Simms's claims regarding CR20001137 precluded as untimely.5 And, as to Simms's claim of ineffective assistance of counsel in CR66597, the court found that "while couched as newly discovered evidence, since [Simms] recently discovered the letter offering a different plea, [his claim] is actually a claim for ineffective assistance of counsel." The court nonetheless found Simms had established a colorable claim of ineffective assistance of counsel and ordered an evidentiary hearing "for this newly discovered evidence-[ineffective assistance] hybrid claim only."

¶7 At the February 2013 evidentiary hearing, the trial court noted that, after Simms had been sentenced in the underlying cases, he was convicted and sentenced to twenty years in prison in a federal matter. Therefore, the court explained, if Simms were successful in the current ineffective assistance claim, "he could request that the [federal] Court modify his twenty-year sentence to something less because . . . [i]f he had only a class two and a class four [prior], it might help him." Defense counsel argued Simms would have accepted the February 2000 plea offer, asserting everything that happened thereafter is "a whole `nother can of worms." When the court asked counsel how Simms had been prejudiced by Gallego's presumed failure to tell him about the February 2000 plea offer, he responded, "[w]ell, I don't know. He might not have been on intensive probation. . . . [H]e was prejudiced by not being notified of that plea that he could have taken." Counsel further argued Simms might not have pled guilty in CR20001137, a wiretap case that "was not very strong against [Simms,] [b]ut as a package deal . . ., he ended up taking both." When the court pointed out that, "conversely, if [Simms] had pled to the class four [in CR66597] before he got indicted on the class two [in CR20001137], there would have been a historical prior that could have been used to enhance the sentence," defense counsel replied, "That's right."

¶8 The parties stipulated Simms would have testified that Gallego had not told him about the February 2000 plea offer before it expired in March 2000, and that he would have accepted that offer had he known about it; and Gallego, who was present at the hearing, would have testified that although he had no independent recollection whether he had told Simms about the offer, it was his practice to inform clients of plea offers. The trial court permitted the parties to submit supplemental memorandum on prejudice, the only remaining issue. After the parties did so, the court denied Simms's petition, finding he had "suffered no prejudice as a result of [Gallego's] performance," and also denied Simms's motion for reconsideration.6

¶9 On review, Simms first asserts Gallego was ineffective in failing to communicate the February 2000 plea offer because, had he known about that offer, he would have accepted it. He also asserts Gallego's cocaine use during plea negotiations and at sentencing further rendered him ineffective. Although the trial court found that Simms's claim actually was one of ineffective assistance of counsel, it treated it as a "hybrid" claim of newly discovered evidence and ineffective assistance of counsel. Simms has not cited any authority allowing a hybrid claim combining two provisions of Rule 32. Accordingly, we will analyze each separately and address the newly discovered evidence portion of his claim first. Under Rule 32.1(e)(2), a defendant must demonstrate that he "exercised due diligence in securing the newly discovered material facts." "That is, the defendant must show he or she `was diligent in pursuing' a remedy under Rule 32." State v. Hess, 231 Ariz. 80, ¶ 7, 290 P.3d 473, 475 (App. 2012), quoting State v. Bilke, 162 Ariz. 51, 53, 781 P.2d 28, 30 (1989).

¶10 In his first post-conviction petition, filed in 2010, Simms asserted Gallego had rendered ineffective assistance of counsel during the plea proceeding, and he had been "disbarred as an attorney for negligent and deficient performances on an unrelated case file, while simultaneously [he] had represented both gentlemen." Simms stated in his affidavit attached to the underlying petition that he had learned about the plea agreement "a short time ago when [he] requested [his] file from attorney Rafael Gallego." He also stated that he "did not learn until recently" that Gallego had been "using and under the influence of cocaine and was distracted with personal problems and could not effectively represent and advise" him of his rights in the underlying matters.

¶11 However, nothing in Simms's petition below or in his petition for review explains why he did not request his file from Gallego in 2010 during his first Rule 32 proceeding when he first asserted Gallego was ineffective. Nor does he explain what "a short time ago" means. Simms presents no "facts from which the [trial] court could conclude [he] was diligent in discovering the facts and bringing them to the court's attention." Bilke, 162 Ariz. at 52-53, 781 P.2d at 29-30. Even if we assume the newly discovered evidence provision can apply to this type of evidence, based on Simms's failure to show he exercised due diligence to secure the purported newly discovered evidence, we deny relief on this claim. Cf. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (appellate court will affirm trial court if result legally correct for any reason).

¶12 Additionally, because Simms raised a claim of ineffective assistance of counsel in his first post-conviction proceeding, the remainder of his "hybrid" claim, which is based on ineffective assistance of counsel, plainly is precluded. Ariz. R. Crim. P. 32.2(a)(2), (3) (defendant precluded from asserting claim raised or that could have been raised in previous proceeding). "[W]hen `ineffective assistance of counsel claims are raised, or could have been raised, in a Rule 32 post-conviction relief proceeding, subsequent claims of ineffective assistance will be deemed waived and precluded.'" Swoopes, 216 Ariz. 390, ¶ 23, 166 P.3d at 952, quoting State v. Spreitz, 202 Ariz. 1, ¶ 4, 39 P.3d 525, 526 (2002) (emphasis omitted).

¶13 Simms also argues the trial court erred by summarily dismissing as untimely his claim that Gallego was ineffective by failing to "properly file pretrial motions and familiarize himself with" CR20001137, conduct he asserts was impacted by Gallego's cocaine use during the relevant time period. Asking that we remand for an evidentiary hearing on this claim, he asserts he is entitled to such a hearing to "present[] evidence why the [p]etition on CR20001137 was filed so long after the sentences" and to explain that he "had no information as to [Gallego's] ineffectiveness . . . until he received" Gallego's file in early 2012. To the extent Simms presented this claim as one of ineffective assistance of counsel, it also is precluded. See Ariz. R. Crim. P. 32.2(a)(2), (3).

¶14 Nor has Simms established that the trial court erred by inferentially finding his claim did not fall within Rule 32.1(e), thereby excepting it from preclusion as newly discovered evidence. See Ariz. R. Crim. P. 32.4(a) ("Any notice not timely filed may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h)."). To be entitled to relief on a claim of newly discovered evidence, a petitioner first must demonstrate the evidence is, in fact, newly discovered. See State v. Serna, 167 Ariz. 373, 374, 807 P.2d 1109, 1110 (1991) (describing five elements of successful newly discovered evidence claim). By asserting he would have explained at the evidentiary hearing why his petition was filed so late, Simms has not established a colorable claim meriting an evidentiary hearing on his claim of newly discovered evidence in the first instance.

¶15 Accordingly, we grant review but deny relief.