State v. Tingue

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROBERT TINGUE, Petitioner.

No. 1 CA-CR 24-0011 PRPC
FILED 12-03-2024

Petition for Review from the Superior Court in Yavapai County
No. P1300CR201800699
The Honorable Krista M. Carman, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Yavapai County Attorney’s Office, Prescott
By Nathan R. Best
Counsel for Respondent

Robert Tingue, Eloy
Petitioner
 STATE v. TINGUE
Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the court, in
which Presiding Judge Michael S. Catlett and Judge Jennifer M. Perkins
joined.

H O W E, Judge:

¶1 Petitioner Robert Tingue petitions this court for review from
the dismissal of his petition for post-conviction relief. We have considered
the petition for review and, for the reasons stated, grant review and deny
relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2020, a jury convicted Tingue of two counts of theft, two
counts of criminal damage, two counts of trafficking in stolen property in
the first degree, and one count of possession of drug paraphernalia. The
trial court sentenced him to consecutive and concurrent terms totaling 19.5
years in prison. On direct appeal, this Court reversed one conviction for
trafficking in stolen property but affirmed the remaining convictions and
sentences. State v. Tingue, 1 CA-CR 20-0297, 2021 WL 2425906, at *1 ¶ 1
(App. June 15, 2021).

¶3 Tingue filed a timely notice for post-conviction relief. In his
petition he alleged that two new witnesses could testify that another man
had committed the crimes he was imprisoned for. See Ariz. R. Crim. P.
32.1(e). Finding the claim colorable, the trial court held an evidentiary
hearing. Tingue attended the hearing virtually. Only one of the two alleged
witnesses testified at the hearing. After the defense rested, the court lost
connection with Tingue. Defense counsel waived Tingue’s presence for the
remainder of the hearing, which consisted of closing arguments. The trial
court later dismissed Tingue’s petition, finding the new witness’ testimony,
comprising mainly of hearsay and double hearsay, to hold little weight.

¶4 Tingue then filed a pro per motion for rehearing, objecting to
the trial court’s ruling because he was not present for the entire hearing and
was unable to testify. He states he would have testified about the lack of
evidence supporting his convictions. In denying the motion, the trial court
found that Tingue did not intend to testify because the defense had rested

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 STATE v. TINGUE
Decision of the Court

before the court lost connection to Tingue. Tingue timely filed a petition for
review of post-conviction relief. We have jurisdiction. See A.R.S. § 13-4239;
Ariz. R. Crim. P. 32.16.

DISCUSSION

¶5 Tingue raises three arguments in his petition. First, he
contends that his right to testify was violated and that defense counsel
knew he wished to testify. The trial court found that the defense rested
before connection with Tingue was lost. On review, Tingue failed to attach
a transcript of the hearing. See State ex rel. Brnovich v. Miller, 245 Ariz. 323,
324 ¶ 5 n.1 (App. 2018). Therefore, we assume the missing portions of the
record support the trial court’s findings and ruling. Id. Accordingly, even if
Tingue remained connected, he could not have testified. We find no error.

¶6 Next, Tingue disputes the sufficiency of the evidence;
however, insufficiency of the evidence is not a ground for relief under
Arizona Rule of Criminal Procedure (“Rule”) 32. See State v. Salazar, 122
Ariz. 404, 406 (App. 1979); Ariz. R. Crim. P. 32.1. To the extent he accuses
the state of misconduct or perjury, the claim is waived. See State v. Bortz, 169
Ariz. 575, 577 (App. 1991) (this Court will not hear matters raised for the
first time in a motion for rehearing).

¶7 Lastly, Tingue claims post-conviction relief counsel was
ineffective for waiving Tingue’s presence at the end of the evidentiary
hearing. As a nonpleading defendant, Tingue has no constitutional right to
counsel in a post-conviction proceeding, and thus, no claim under Rule 32.
See State v. Escareno-Meraz, 232 Ariz. 586, 587 ¶ 4 (App. 2013).

CONCLUSION

¶8 We grant review and deny relief.

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

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