State v. Salerno, 1 CA-CR 14-0728-PRPC

Background

In 2001 a jury convicted Fox Joseph Salerno of class three felony theft and he received an aggravated 20‑year sentence.
Salerno repeatedly pursued post‑conviction and civil proceedings claiming the victim and prosecutor withheld exculpatory evidence; prior petitions (2003–2009) were unsuccessful.
In 2012 Salerno obtained access to the prosecutor’s file via a 42 U.S.C. § 1983 action and discovered undisclosed business records and a prosecutor’s letter offering a plea agreement to defense counsel.
Salerno filed a Rule 32 petition asserting newly discovered evidence (documents supporting payment for the merchandise) and an ineffective‑assistance/Brady claim (failure to disclose plea offer and records).
The superior court summarily dismissed the petition, finding Salerno failed to show he exercised reasonable diligence to discover the evidence before trial.
The Court of Appeals reviewed whether Salerno’s allegations and supporting documentation established a colorable claim—specifically regarding diligence—entitling him to an evidentiary hearing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether petition alleges diligence in discovering new evidence	Salerno: he sought records from State, victim, investigator, and only accessed prosecutor file in 2012 via § 1983	State: records could have been found earlier; Salerno failed to show reasonable diligence	Court: Salerno showed a colorable, fact‑based showing of diligence; dismissal was error; remand for evidentiary hearing
Whether evidence qualifies as "newly discovered"	Salerno: records and letter existed at trial but were undisclosed and obtained later from prosecutor file	State: evidence was not properly shown to be unavailable earlier	Court: documents were in prosecutor file and Salerno’s attempts to obtain them earlier support that they were newly discovered
Whether the evidence is more than cumulative or impeaching and likely to alter outcome	Salerno: records support innocence (payment); plea letter would have led to probation if communicated	State: evidence is cumulative/impeaching or would not have changed verdict/sentence	Court: sufficiency of these contentions is for an evidentiary hearing; petition met colorable‑claim standard
Whether counsel was ineffective for not conveying plea offer	Salerno: affidavit says counsel never informed him and he would have accepted plea	State: no basis to conclude counsel ineffective absent earlier notice	Court: because offer was in prosecutor file Salerno could not have known earlier; claim is colorable under Frye and merits hearing

Key Cases Cited

State v. Bilke, 162 Ariz. 51 (court’s five‑factor test for newly discovered evidence)
State v. Krum, 183 Ariz. 288 (definition of a colorable Rule 32 claim)
State v. Bennett, 213 Ariz. 562 (standard of review for Rule 32 dismissals)
State v. Gutierrez, 229 Ariz. 573 (purpose of evidentiary hearing in post‑conviction context)
State v. Amaral, 239 Ariz. 217 (what constitutes a colorable claim that could change outcome)
Brady v. Maryland, 373 U.S. 83 (prosecutor’s duty to disclose exculpatory evidence)
Missouri v. Frye, 566 U.S. 133 (duty to communicate formal plea offers)
State v. Donald, 198 Ariz. 406 (recognizing counsel’s duty to communicate plea terms)