State v. Hill

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JUSTIN DWAYNE HILL, Petitioner.

No. 1 CA-CR 23-0148 PRPC
FILED 04-02-2024

Petition for Review from the Superior Court in Maricopa County
No. CR2017-006213-001
The Honorable Frank W. Moskowitz, Judge

REVIEW GRANTED; RELIEF
DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Douglas Gerlach
Counsel for Respondent

Justin Dwayne Hill, San Luis
Petitioner
 STATE v. HILL
Decision of the Court

MEMORANDUM DECISION

Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge Angela K. Paton and Judge James B. Morse Jr. joined.

C A T L E T T, Judge:

¶1 Justin Hill (“Hill”) seeks review of the superior court’s
dismissal of his request under Arizona Rule of Criminal Procedure (“Rule”)
32.17 for post-conviction DNA testing and its dismissal of his subsequent
Rule 32.1 notice seeking post-conviction relief (“PCR”). We grant review
but deny relief.

FACTUAL AND PROCEDURAL HISTORY

¶2 The State charged Hill with committing five burglaries and
one theft of five commercial establishments, including a restaurant and a
coffee shop. At trial, the State presented evidence that Hill’s fingerprints
were found in the restaurant and coffee shop. Police officers testified that
Hill “appeared to be” the person captured in surveillance video of those
burglaries.

¶3 A jury found Hill guilty of burglarizing the restaurant and
coffee shop, where Hill’s fingerprints were found, but the jury could not
reach a verdict on the other charges involving locations where Hill’s
fingerprints were not found. The superior court sentenced Hill to
concurrent, maximum terms of 12 years’ imprisonment.

¶4 Shortly after sentencing, Hill filed a PCR notice under Rule
32.1. The superior court dismissed the notice as premature because four of
the charges against Hill were not yet resolved. The court granted Hill leave
to refile within 90 days after sentencing on the remaining counts, or 30 days
after issuance of the order and mandate in a direct appeal, whichever
occurred later.

¶5 Ten months later, the superior court dismissed the four
unresolved counts. Hill appealed to this court.

¶6 While his direct appeal was pending, Hill filed a second PCR
notice (“Second PCR Notice”) under Rule 32.1, checked all Rule 32.1 claim
boxes, and elected to represent himself. Hill separately petitioned for DNA

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Decision of the Court

testing under Rule 32.17 and requested the appointment of counsel (“Rule
32.17 Proceeding”). The court appointed counsel to represent Hill in the
Rule 32.17 Proceeding only.

¶7 Hill filed several pro se motions, including requests for
production of case records, an extension of time to file a petition, and a
status report. The court advised Hill “[w]ith regard to the motion for
status,” that he “has a Rule 32.1 proceeding and a Rule 32.17 proceeding
pending.” The court granted in part Hill’s motions for production of case
records and gave him more time to file a petition, extending the deadline to
February 4, 2021.

¶8 Hill continued to file pro se motions. The court acknowledged
those filings but concluded it could not “accept any pro se filings or
communications” because an attorney represented Hill. The court
forwarded Hill’s motions to his attorney. Hill filed another pro se motion
for clarification, asking whether he had separate proceedings under Rules
32.1 and 32.17 and explained that he had only been appointed counsel in
the Rule 32.17 Proceeding. The court did not respond to that motion but
the Rule 32.17 Proceeding continued.

¶9 In the Rule 32.17 Proceeding, Hill asked for DNA testing of
multiple items the perpetrator handled in the restaurant and coffee shop
burglaries. Hill specifically requested DNA testing of a knife used in the
restaurant burglary and the front cover plate to the register drawer at the
restaurant, as well as a cash register and cash boxes from the coffee shop.

¶10 The State averred that, of the items Hill requested, only a
swab from the cover plate of the cash register at the restaurant was available
for testing. The superior court dismissed the Rule 32.17 Proceeding,
concluding there was no reasonable probability that (1) Hill would not have
been prosecuted or convicted, or (2) that the results of such testing would
have led to a more favorable outcome.

¶11 On January 27, 2022, this court affirmed Hill’s convictions on
direct appeal. See State v. Hill, 1 CA-CR 19-0377, 2022 WL 244078 (Ariz.
App. Jan. 27, 2022) (mem. decision). On March 1, 2022, before this court
issued its mandate, Hill filed another Rule 32.1 PCR notice (“Third PCR
Notice”). He stated in the Third PCR Notice that it was timely because he
filed the Notice within 30 days of this court’s mandate. Hill again checked
all boxes for potential Rule 32.1 relief.

¶12 The superior court reviewed the Third PCR Notice. The court
acknowledged that it had dismissed Hill’s first notice (with leave to refile)

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and the Rule 32.17 Proceeding. The court found that Hill “fail[ed] to specify
the nature of the [Rule 32.1(a)] violation” and relief was precluded “[t]o the
extent [Hill] could have raised the claims on appeal or in a timely Rule 32
proceeding[.]” The court found there was subject matter jurisdiction for his
Rule 32.1(b) claim. The court denied the Rule 32.1(c)-(f) claims because Hill
“ma[de] no effort to develop” them and “fail[ed] to state a claim for which
relief can be granted[.]” The court concluded that Hill did not “assert
substantive claims and adequately explain the reasons for their untimely
assertion” and dismissed the Third PCR Notice pursuant to Rules 32.2(b)
and 32.11(a).

¶13 Hill seeks review of the dismissal of his Rule 32.17 Proceeding
for DNA testing and the dismissal of his Third PCR Notice. We grant
review under A.R.S. § 13-4239(G).

DISCUSSION

¶14 We review the superior court’s denial of post-conviction
relief, including for DNA testing, for an abuse of discretion. See State v.
Gutierrez, 229 Ariz. 573, 577 ¶ 19 (2012). But we consider legal questions de
novo. State v. Bigger, 251 Ariz. 402, 407 ¶ 6 (2021).

I. Rule 32.17 Proceeding

¶15 Hill argues the superior court erred by refusing DNA testing
of swabs taken from the knife and cash register cover plate the suspect
handled during the restaurant burglary. A criminal defendant who has
been convicted and sentenced may petition the superior court for DNA
testing of evidence related to the conviction. Ariz. R. Crim. P. 32.17(a); see
also A.R.S. § 13-4240(A). The court must order testing if it finds that the
evidence still exists, that it was not previously subjected to the testing now
requested, and that there is “a reasonable probability . . . that the defendant
would not have been prosecuted, or the defendant’s verdict or sentence
would have been more favorable, if DNA testing would produce
exculpatory evidence.” Ariz. R. Crim. P. 32.17(d)(1); see also A.R.S. § 13-
4240(B).

¶16 Hill contends that if testing did not reveal his DNA, then there
was a reasonable probability he would not have been convicted of either
burglary because surveillance video showed that the same person
committed both burglaries, and the jury verdicts overall show his
convictions were a “close call.”

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¶17 The superior court did not abuse its discretion in concluding
that Hill did not meet the standard to obtain testing of the cover plate of the
restaurant’s cash register drawer.1 Fingerprint and video evidence linked
Hill to the restaurant burglary. Even if DNA testing of the cash register
cover plate revealed no identifiable DNA, or DNA belonging to someone
other than Hill, those results would not establish a reasonable probability
that Hill would not have been prosecuted for, or convicted of, burglary
because the fingerprint and other evidence placed him at the scenes. See
Ariz. R. Crim. P. 32.17(d)(1)(A); A.R.S. § 13-4240(B)(1); State v. Hernandez, 250 Ariz. 28, 33–34 ¶¶ 20–21 (2020) (holding that uncollected DNA evidence
did not tend to exonerate the defendant where the evidence would only
either “match [the defendant], definitively confirming he was the
[offender]” or “not match [the defendant], which would not conclusively
exculpate him because he may not have left identifiable DNA . . . even if he
were the [offender]”).

¶18 Hill argued at trial that the State’s inability to connect Hill to
any of the crime scenes through DNA evidence was a flaw in the State’s
case. Hill further argued that the State’s fingerprint evidence was
insufficient to convict Hill, “especially by itself,” and that “DNA [evidence]
is much more objective” than fingerprint evidence, but “we don’t have
[DNA] in this case.” The jury was not persuaded and returned guilty
verdicts for those burglaries where Hill’s fingerprints were found at the
crime scene.

¶19 Moreover, Hill undercuts his argument that the jury would
not have found him guilty if DNA testing showed that his DNA was not
located at the restaurant. Hill does not argue that DNA evidence from the
coffee shop would impact the jury’s determination that he committed that
burglary. The jury clearly concluded that the fingerprint and video
evidence from the coffee shop sufficiently established that Hill committed
the burglary there. And Hill admits that, based on the video footage from
the crime scenes, it is “clear that the same person committed each burglary.”
Thus, the absence of Hill’s DNA at the restaurant would not conclusively
exculpate Hill. We affirm the superior court’s denial of Hill’s request for
DNA testing.

1 The State informed the superior court that the police never took
possession of the knife used in the restaurant burglary.

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II. Third PCR Notice

¶20 Hill also argues that the court improperly dismissed his Third
PCR Notice. “A self-represented defendant must file a petition no later than
60 days after the notice is filed[.]” Ariz. R. Crim. P. 32.7(a)(1)(A)(ii)
(emphasis added). If there is “good cause,” the court may grant a 30-day
extension and additional 30-day extensions if there are “extraordinary
circumstances.” Ariz. R. Crim. P. 32.7(a)(1)(B). If a Rule 32.1(b)-(h) claim is
raised in a subsequent PCR notice, “the defendant must explain the reasons
for not raising the claim in a previous notice or petition, or for not raising
the claim in a timely manner.” Ariz. R. Crim. P. 32.2(b). The court is
permitted to “summarily dismiss the notice” if the defendant does not
provide “sufficient reasons” in the notice. Ariz. R. Crim. P. 32.2(b); see also
Ariz. R. Crim. P. 32.11(a) (if “no remaining claim presents a material issue
of fact or law that would entitle the defendant to relief . . . the court must
summarily dismiss the petition”).

¶21 Hill argues the superior court should not have dismissed his
Third PCR Notice because he “did not intend for [the Rule 32.17 petition]
to be [his] Rule 32.1 petition.” But the superior court did not treat Hill’s
Rule 32.17 petition as his Rule 32.1 petition or dismiss his Rule 32.1 petition
on the mistaken belief that the two were one and the same. The superior
court separately dismissed Hill’s Rule 32.17 petition and his Third PCR
Notice.

¶22 In arguing that he did not intend his Rule 32.17 Petition to be
his Rule 32.1 Petition, Hill admits that he never filed a petition supporting
his Second PCR Notice. Rather than submitting a petition, Hill filed the
Third PCR Notice. As the superior court noted, in his Third PCR Notice,
Hill “fail[ed] to specify the nature of the [Rule 32.1(a)] violation” and did
not “assert substantive claims and adequately explain the reasons for their
untimely assertion[.]” The Third PCR Notice did not explain why Hill had
not previously filed a petition supporting the Second PCR Notice or why
he was instead submitting a third (and successive) notice. Failure to comply
strictly with Rule 32 justifies denying relief. State v. Carriger, 143 Ariz. 142,
146 (1984). Thus, the court did not abuse its discretion in dismissing Hill’s
Third PCR Notice.

¶23 Hill also makes arguments regarding the superior court’s
handling of his Second PCR Notice and the motions he filed relating to that
notice. Hill, for example, complains the court did not respond to his motion
for clarification regarding the number of proceedings. The superior court,
however, did not resolve Hill’s Second PCR Notice, and Hill’s petition for

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Decision of the Court

review focuses primarily on the dismissal of his Third PCR Notice. Based
on the record, it appears Hill’s Second PCR Notice remains pending in the
superior court. Accordingly, we do not address Hill’s arguments regarding
his Second PCR Notice. See A.R.S. § 13-4239(C) (“Within thirty days after
the final decision of the trial court on the petition for post-conviction relief
or motion for rehearing, an aggrieved party may petition the appellate
court for review of the trial court’s actions.”). Assuming Hill’s Second PCR
Notice remains pending, Hill may still address any arguments regarding
that notice to the superior court.

CONCLUSION

¶24 We grant review and deny relief.

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

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