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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                BRENT ALEXANDER HARGOUS, Petitioner.

                          No. 1 CA-CR 15-0454 PRPC
                               FILED 5-4-2017


      Petition for Review from the Superior Court in Apache County
                         Nos. S0100CR201100146
                              S0100CR201100268
                              S0100CR201100269
                              S0100CR201200104
          The Honorable Michael P. Roca, Judge Pro Tem, Retired

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

Apache County Attorney’s Office, St. Johns
By Michael B. Whiting
Counsel for Respondent

Emily Danies, Tucson
Counsel for Petitioner
                           STATE v. HARGOUS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Paul J. McMurdie joined.




T H O M P S O N, Judge,:

¶1            Brent Alexander Hargous 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 but deny
relief.

¶2            The state charged Hargous with multiple crimes in four
different cases. After the superior court consolidated the cases, Hargous
entered into plea agreements with the state. The court placed him on four
years of intensive probation, a condition of which required Hargous to
actively participate in an inpatient drug rehabilitation program.

¶3            The state subsequently petitioned the court to revoke
Hargous’s probation based on allegations that he failed to seek drug
treatment. The court held a hearing and found the state proved the
probation violation. Consequently, the court revoked probation and
sentenced Hargous to consecutive prison terms totaling eighteen years. On
direct appeal, this court affirmed.

¶4             Hargous subsequently petitioned the superior court for relief
pursuant to Arizona Rule of Criminal Procedure 32, arguing newly
discovered evidence entitled him to be resentenced. Specifically, Hargous
explained that, shortly after he began serving his prison sentence, he was
diagnosed as having a psychiatric disorder. Hargous provided a copy of a
letter by a psychiatrist who, after reviewing Hargous’s mental health
records from the Department of Corrections, opined that “it’s extremely
likely . . . [Hargous’s] psychiatric diagnoses were present at the time of
sentencing . . ..” The psychiatrist also stated “the diagnosis . . . was most
likely present . . . when Mr. Hargous committed certain crimes.” According
to Hargous, he probably would have received mitigated or concurrent
sentences had the trial court known at sentencing of his mental illness.




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                            STATE v. HARGOUS
                            Decision of the Court

¶5            The superior court noted that the petition did not comply
with Rule 32.5, which requires a petition to be accompanied by the
defendant’s declaration “stating under penalty of perjury that the
information contained in the petition is true to the best of the defendant’s
knowledge and belief.” The court gave Hargous sixty days to amend his
petition to comply with Rule 32.5.

¶6             Almost two months after the court-ordered deadline,
Hargous’s counsel filed a declaration avowing that the information
contained in the petition was true to the best of Hargous’s and her
knowledge and belief. The court dismissed the petition because the
provided declaration did not remedy the defect; namely, Hargous’s
attorney, not Hargous himself, made the declaration. The court also found
the petition failed to present a colorable claim. Hargous unsuccessfully
moved for reconsideration before requesting another sixty-day extension to
file a Rule 32.5 compliant declaration. The court denied Hargous’s request,
and this timely petition for review followed.

¶7            Hargous argues the court erred in determining he failed to
present a colorable claim. Specifically, he contends the psychiatric
diagnosis made after he was sentenced constituted newly discovered
evidence requiring the superior court to resentence him. Hargous also
contends the superior court should have granted him leave to file a delayed
Rule 32.5 declaration.

¶8             “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, 393, ¶ 4, 166 P.3d 945, 948 (App. 2007). We are obliged to
uphold the trial court’s ruling if the result is legally correct for any reason.
State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984); State v. Cantu,
116 Ariz. 356, 358, 569 P.2d 298, 300 (1977).

¶9             To present a colorable claim of newly-discovered evidence,
the evidence must appear on its face to have existed at the time of trial (or
in this case, at sentencing) but be discovered thereafter. State v. Bilke, 162
Ariz. 51, 52, 781 P.2d 28, 29 (1989). In Bilke, our supreme court addressed a
claim of newly discovered evidence relating to a defendant’s diagnosis of
post-traumatic stress disorder (PTSD). Id. at 53, 781 P.2d at 30. There, the
Court determined the defendant satisfied the foregoing requirement
because, “while defendant may have been aware that his mental condition
was not stable, he was not aware that he suffered from PTSD.” Id. at 53, 781
P.2d at 30. The reason for the defendant’s lack of knowledge regarding his




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                            STATE v. HARGOUS
                            Decision of the Court

PTSD, the court noted, was that PTSD “was not a recognized mental
condition at the time of his trial.” Id.

¶10           Hargous does not contend he was diagnosed with a mental
illness that was not a recognized mental condition at the time he was
sentenced. Nor does Hargous argue his mental illness was otherwise not
subject to diagnosis at that time. He merely asserts that, although he was
aware at the time of sentencing that he suffered a mental illness, the specific
disorder was not diagnosed until after he started serving his sentence.
Thus, unlike the petitioner in Bilke, Hargous’s post-trial diagnoses did not
amount to newly discovered evidence. As a result, Hargous did not present
a colorable claim, and the superior court acted within its discretion by
dismissing the petition for post-conviction relief.1

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




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




1      Based on Hargous’s failure to raise a colorable claim of newly
discovered evidence, addressing the propriety of the superior court’s
decision denying Hargous leave to file a declaration in compliance with
Rule 32.5 is unnecessary.


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