State v. Roberts

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GARY ROBERTS, Petitioner.

No. 1 CA-CR 24-0364 PRPC
FILED 03-27-2025

Petition for Review from the Superior Court in Maricopa County
No. CR2020-126019-002
The Honorable Suzanne E. Cohen, Judge

REVIEW GRANTED; RELIEF DENIED

APPEARANCES

Gary Roberts, Eloy
Petitioner

Maricopa County Attorney’s Office, Phoenix
By Douglas Gerlach
Counsel for Respondent
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Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the Court’s decision in which Presiding
Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.

W I L L I A M S, Judge:

¶1 Gary Roberts petitions this court to review the superior
court’s order dismissing his second petition for post-conviction relief
(“PCR”) filed under Arizona Rule of Criminal Procedure (“Rule”) 32. For
the following reasons, we grant review but deny relief.

¶2 At the conclusion of a nine-day trial, the superior court
instructed the jury, inter alia, regarding the victim’s absence from the trial:

There has been information presented that [the victim] is
deceased. Her death is not due to any wrongdoing on the
defendant’s part. The fact she passed away is not related to
the defendant in any way. You are not to consider her death
as any indication of the defendant’s guilt or innocence.

¶3 After deliberation, the jury convicted Roberts of one count of
armed robbery, one count of first-degree burglary, one count of
kidnapping, and two counts of aggravated assault with a deadly weapon.
Before sentencing, Roberts also pled guilty to an additional felony of
misconduct involving weapons. The court sentenced him to concurrent and
consecutive prison terms totaling 36 years with 471 days of presentence
incarceration credit.

¶4 On direct appeal, this court affirmed Roberts’ convictions and
sentences. State v. Roberts, No. 1 CA-CR 22-0028, 2022 WL 17420046 (Ariz.
App. Dec. 6, 2022) (mem. decision).

¶5 Roberts then filed his first petition for PCR. In it, he raised an
ineffective assistance of counsel (“IAC”) claim arguing his appellate
attorney had failed to raise the issue of prosecutorial misconduct stemming
from comments the prosecutor made about the victim’s death. Roberts
alleged the prosecutor’s comments were “an inflammatory appeal to the
emotions of the jury, [and] depriv[ed] [Roberts] of Constitutional Rights.”
Roberts also claimed it was prosecutorial misconduct for the prosecutor to
tell the jury the victim was deceased.

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Decision of the Court

¶6 The superior court dismissed the prosecutorial misconduct
claim relying upon this court’s decision in the direct appeal: “The Court of
Appeals addressed the issue of the jury being told of the [victim’s] death,
and specifically trial counsels claim of prosecutorial misconduct. The Court
of Appeals found no prejudice.” As to the IAC claim, the superior court
found it to be “unsubstantiated” because Roberts failed to show that “had
Appellate counsel argued prosecutorial misconduct[,] the result would
have been different.”

¶7 Roberts’ second petition for PCR is the subject of our review
here. In it, Roberts raised several additional claims. He first argued the
superior court lacked subject matter jurisdiction because the grand jury
issued an indictment based upon perjury (Rule 32.1(b)). Roberts also made
several Rule 32.1(a) claims including IAC, prosecutorial misconduct,
violation of his due process rights, and insufficient evidence to support the
convictions. Finally, Roberts claimed that newly discovered material facts
supported relief (Rule 32.1(e)), that his sentences were illegal (Rule 32.1(c)),
that a significant change in law occurred which would entitle him to relief
(Rule 32.1(g)), and that he is innocent (Rule 32.1(h)).

¶8 The superior court concluded it had subject matter
jurisdiction because Roberts failed to provide any evidence of perjury other
than vague allusions to a forthcoming affidavit. Additionally, the court
found the indictment was supported on independent grounds. The court
dismissed the 32.1(a) claims because Roberts could have raised them in his
direct appeal or in his first petition for PCR, and therefore, they were
precluded. Roberts’ remaining claims were dismissed because he failed to
provide any new material facts to support his Rule 32.1(e) claim and made
“no effort to develop [his Rule 32(c), (g), and (h)] claims.” This court has
jurisdiction under A.R.S. §§ 13-4031, -4239(C), and Rule 32.16(a).

¶9 Roberts now argues he should have been granted an
evidentiary hearing because his IAC and prosecutorial misconduct claims,
“if . . . true[, might] have changed the outcome.”

¶10 Absent an abuse of discretion or error of law, this court will
not disturb a superior court’s ruling on a petition for PCR. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). It is petitioner’s burden to show that the
superior court abused its discretion by denying the petition for PCR. See
State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011) (petitioner has burden of
establishing abuse of discretion on review).

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¶11 Roberts makes several prosecutorial misconduct claims. He
first argues the State committed perjury to the grand jury by presenting
false hearsay testimony and by stating that Roberts’ mother fully inculpated
him when, according to Roberts, “she fully exculpated [him] as to several
of the allegations.” But the only evidence Roberts provides to this court is
an affidavit from his mother that was never presented to the superior court.
We, therefore, don’t consider it. Additionally, Roberts reasserts his claim
the State improperly discussed the victim’s murder during trial. Each of
these prosecutorial misconduct claims is precluded because each was either
raised previously or should have been raised during his direct appeal.
Roberts, 1 CA-CR 22-0028, at *2–*4, ¶¶ 14–20; Ariz. R. Crim. P. 32.2(a)(3);
State v. Vitasek, No. 1 CA-CR 19-0419 PRPC, 2020 WL 949561, at *2, ¶ 9 (Ariz.
App. Feb. 27, 2020) (mem. decision).

¶12 Roberts further claims the State committed perjury at trial and
“destroyed Brady, Davis, [and] Rule 15.1 material,” namely video
recordings of his mother’s interview with police. But because Roberts did
not first raise these issues in the superior court, we do not address them
here. State v. Ramirez, 126 Ariz. 464, 468 (App. 1980).

¶13 Roberts also contends his attorney failed to provide effective
assistance either at trial or with his first petition for PCR because his
attorney did not call, depose, or obtain affidavits from the witnesses that
presented “factually incorrect and abjectly false” hearsay testimony “to
obtain both the Indictment and the conviction.” Roberts maintains that by
failing to even “provide a rebuttal to or impeachment of the State’s
witnesses’ misrepresentations,” his attorney deprived him of his right to
effective assistance of counsel. Specific to his first petition for PCR, Roberts
claims his attorney failed to present any arguments relevant to the
“destroyed Brady, Davis, [and] Rule 15.1 material.”

¶14 But Roberts is precluded from bringing any IAC claims
against his trial attorney because Roberts could have raised them in his first
petition for PCR. State v. Spreitz, 202 Ariz. 1, 2, ¶ 4 (2002). As to the IAC
claims against his PCR attorney, Roberts fails to state a cognizable ground
for relief because “[n]on-pleading defendants . . . have no constitutional
right to counsel in post-conviction proceedings.” State v. Escareno-Meraz,
232 Ariz. 586, 587, ¶ 4 (App. 2013).

¶15 On this record, Roberts has failed to show the superior court
abused its discretion in denying his second petition for PCR. And although
Roberts insists “he must be given an opportunity to correct errors” because

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he is representing himself, this court does not “extend special treatment” to
litigants proceeding in propria persona. Smith v. Rabb, 95 Ariz. 49, 53 (1963).

¶16 For those reasons, we grant review but deny relief.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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