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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ANTHONY TERRANOVA, Petitioner.
No. 1 CA-CR 16-0404 PRPC
FILED 10-3-2017
Petition for Review from the Superior Court in Maricopa County
No. CR 1996-095002
The Honorable Daniel J. Kiley, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent
Anthony Terranova, Tucson
Petitioner
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer B. Campbell joined.
STATE v. TERRANOVA
Decision of the Court
B R O W N, Judge:
¶1 Anthony Terranova petitions this court for review from the
dismissal of his petition for post-conviction relief ("PCR"). We have
considered the petition for review and, for the reasons stated below, grant
review but deny relief.
¶2 A jury rejected Terranova's claim of self-defense and
convicted him of first-degree murder and third-degree burglary. The
superior court sentenced him to natural life in prison for the murder
conviction and to a consecutive term of eight years for the burglary
conviction. This court affirmed the convictions and sentences on direct
appeal. State v. Terranova, 1 CA-CR 98-0805 (Ariz. App. Sep. 2, 1999) (mem.
decision).
¶3 Terranova timely sought post-conviction relief, asserting
claims of ineffective assistance of counsel (“IAC"), newly discovered
evidence, excessive sentence, unlawful suppression of evidence, and use of
perjured testimony by the State. The superior court summarily dismissed
Terranova's filing because it found no colorable claims. Terranova did not
seek review by this court.
¶4 Over 14 years later, Terranova filed a successive PCR.
Asserting several claims based on "new evidence," he first argued that the
State disposed of his vehicle to prevent defense experts from examining it
for blood splatter evidence, which would prove the victim was shot further
outside the restaurant than the State alleged at trial. He also claimed that
other blood found at the scene should have been tested for the same reason.
Terranova argued that a "second man," a restaurant employee named M.
Papa, witnessed the shooting, but that M. Papa "was neither on the [S]tate's
list of witnesses" nor mentioned during discovery.
¶5 As additional claims of "new evidence," Terranova asserted
he discovered an audiotape of witness interviews that had not been
disclosed. He argued the tape contained a statement by witness Mary
Yazzie that could have been used to impeach her testimony at trial and to
prove that the prosecutor had coerced her to change her testimony. He also
claimed that news footage airing shortly after the murder included an
interview with police in which statements were made that were
inconsistent with the State's theory that the victim was inside the restaurant
when the shooting occurred. He further argued that an independent
emergency medical technician's report supported his claim that the victim
had been shot while outside the restaurant.
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STATE v. TERRANOVA
Decision of the Court
¶6 Asserting prosecutorial misconduct, Terranova alleged the
State committed a Brady violation when the prosecutor "made a deal" with
his cell mate, Darren Fox, but had not disclosed the deal. He further
claimed that the State had searched a witness's truck at the crime scene and
might have found incriminating evidence, but may not have prosecuted the
witness in exchange for the witness's testimony in Terranova's case. Next,
he claimed that the character and honesty of the medical examiner, Dr.
Phillip Keen, and the prosecutor, Noel Levy, had been called into question
by other cases and media reports.
¶7 Terranova's PCR also included several IAC claims, some of
which had already been presented in his earlier PCR. The last claim he
asserted was actual innocence. Essentially, Terranova argued that but for
the claimed errors outlined above, no reasonable jury would have convicted
him.
¶8 The superior court addressed each of Terranova's claims and
concluded they were precluded or not colorable, and summarily dismissed
them. This petition for review followed.
¶9 Absent an abuse of discretion or error of law, this court will
not disturb a superior court's ruling on a petition for post-conviction relief.
State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). Terranova has not shown
any abuse of discretion or error of law.
¶10 On review, Terranova first complains that the superior court
incorrectly referred to his PCR as his "fourth" PCR. Whether identified as
his second or fourth PCR, the rules and consequences of filing an untimely
and successive PCR are the same. See Ariz. R. Crim. P. 32.2(b); see also State
v. Petty, 225 Ariz. 369, 372-73, ¶ 10 (App. 2010).
¶11 Terranova argues the superior court improperly deemed his
"Rule 32 Post Conviction Relief" a "Notice of Post-Conviction Relief," and
complains that the order dismissing the PCR does not have a signature or
seal "signifying the mandate was an official order by a duly sworn judge of
the Superior Court of Arizona."1 Terranova does not explain how or why
this is error, nor does he cite any authority requiring or even suggesting
that an order dismissing a PCR must be signed or bear an official seal, or
1 Rule 32.9 allows for a petition for review from the superior court's
final decision and does not require that the order be signed, or that the order
bear an official seal.
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STATE v. TERRANOVA
Decision of the Court
that the court erred when it referred to his PCR as "Notice of Post-
Conviction Relief."
¶12 Terranova next argues the superior court erred when it
dismissed his claims of prosecutorial misconduct and insufficiency of
evidence as precluded because "[t]hat is what the Rule 32 process is for, to
raise issues that were not raised on direct appeal." Contrary to Terranova's
understanding, any claim that could have been (or was) raised on direct
appeal or in an earlier PCR proceeding is precluded, except for claims
raised under 32.1(d), (e)-(h). See Ariz. R. Crim. P. 32.2(a), (b). And for these
claims, a petitioner must state in the notice of PCR why the claim was not
raised before, and must set forth the specific exception. Id. 32.2(b). Given
that requirement, only the "new evidence" claims are properly before us.
¶13 Terranova, however, has failed to show that any of the "new
evidence" is material or that it would have probably changed the jury's
verdict. State v. Saenz, 197 Ariz. 487, 489, ¶ 7 (App. 2000). Stated differently,
Terranova's claims, even if true, would not entitle him to relief. Terranova
admitted at trial he shot the victim twice in the back, but claimed he acted
in self-defense because the victim had been carrying a knife. No knife was
ever found, and the only eyewitness to the shooting testified that the victim
was unarmed. The superior court ruled on these issues in a thorough, well-
reasoned manner that will allow any future court to understand the court's
ruling. Under these circumstances, no further analysis is needed. See State
v. Whipple, 177 Ariz. 272, 274 (App. 1993). Therefore, we adopt the trial
court's ruling and deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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