Timothy Pena is a US Navy Veteran that served with the Seabees in the Persian Gulf during the Iranian Hostage Seize and Operation Eagle Claw in May 1980. It was during this WestPac that Tim witnessed the suicide of a Marine who had received a bad letter from home. Just four years earlier while Tim was in high school, a friend and Vietnam Veteran had also unexpectedly committed suicide while at work, leaving the community he grew up in stunned. Tim never mentally recovered after that deployment and he would fall into alcohol-fueled delusion-filled rages. It was during these times of crisis that have directly contributed to numerous DUI’s; all non-violent and never any injuries, but all serious charges for which Tim has been rightly punished. Not until the arrest in 2014 and present for another suicide by a veteran in the jail’s Veteran’s pod that Tim sought out treatment with the VA beginning in 2015. In 2017, Tim was awarded a 70% VA Disability rating for PTSD and is still in treatment with at the Jade/Opal clinic (1a).

Tim continues to utilize the VA for mental health services with adherence to appointments with Jade/Opal Clinic as well as resources from non-VA agencies. After release from prison in August 2019, he founded Veterans Justice Project (VJP) and just received his Limited Liability Company (LLC) with the Arizona Corporation Commission with the possibility of registering as a 501(c)3 in the future. He continues to share his experiences with the judicial system and assist other justice-involved and incarcerated veterans and while advocating for the expansion of Veterans Treatment Courts to include low-level felonies. VJP is currently representing approximately twenty veterans (1b).

Tim served a total of 14 months of continuous imprisonment first at Yuma/La Paz where he helped launch the first Veterans support group; and then at Tucson/Whetstone Veteran’s Regaining Honor program. Tim also completed numerous other programs including Men in Recovery and Cultural Diversity. He was released on August 8, 2019 first to Maricopa County Probation, then to Veterans Treatment Court, and ultimately assigned to Probation Officer Elizabeth Kinsey. Since being placed on probation with the Veterans Treatment Court, Tim has maintained stable housing, continued to fulfill financial obligations, and has maintained regular testing with Averhealth. On January 24, 2020 Tim attended a Veteran’s Stand Down event and granted a 50% reduction of fees for the marijuana conviction (1c).

On October 20, 2014 Tim was charged with Agg DUI and Possession of Marijuana following a traffic stop after Gilbert Police Officer Chad Wright followed Tim from the parking lot of a bar. After receiving a warrant, Wright then drew Two Vials of Blood evidence. The blood evidence was logged as, ‘Out to Testing’ from October 29, 2014 to December 31, 2014 to Mesa PD Forensic Services. It should be noted that lab results for the blood evidence show a positive result for ‘Methadone’ which Tim has never used (2a).

According to the Chain of Custody’s provided to Tim by Gilbert PD on May 9, 2019, both vials of the blood evidence are logged as ‘Out to Court’ on July 29, 2015, but not returned until August 4, 2016, more than a year later. Additionally, the Chain of Custody lists the Marijuana evidence as NOT being logged out for trial, and the Body Worn Camera as that of ‘Tammy Rae’ Pena and NOT the defendant (2b).

Tim was first notified of the missing blood evidence by Defense Attorney Robert Precht on September 15, 2015 immediately following a hearing where Precht had just withdrawn from the case. He and Prosecutor Karen Kormada had just been telling the Court and Tim, “discovery is complete” and “They have the blood” while encouraging Tim to "take a plea" (3a). In the hallway following the hearing, Precht then attempted to extort $10,000 from Tim because he was wearing a nice suit Tim had received as a hand-me-down from a former client.

As Pro Per, Tim’s attempt at disclosure from Precht were ignored and not until he filed a complaint with the State Bar of Arizona, did Tim receive any response. The State Bar found no basis for Tim’s complaint even though Precht admitted to misconduct. Tim’s complaint with Maricopa County Contract Services was also dismissed (3b).

On September 21, 2015, Tim was assigned Defense Attorney Rebecca Felmly, who immediately petitioned for a Rule 11 Evaluation. In the hallway following the hearing, Tim and his sister emphasized the need to secure the location of the mishandled and missing blood evidence. It was on that date, with the ONLY blood evidence missing, that Felmly assured both Tim and his sister she would “look into it” and get back to them. It would be twenty-two months before Felmly would finally disclose the mishandled blood evidence to her client (4a).

Through no fault of his own, Tim was taken into custody on January 25, 2016 and spent the next 70 days at the Maricopa County Jail, mostly in the Psych Ward and on Suicide Watch. Unknown to Tim, on April 4, 2016, and six days before Pena was released from jail, Felmly sent Kormada an email, thanking her “for having the discovery redisclosed”. While on suicide watch and frustrated at the lack of contact by Felmly that included blocking his phone calls, Pena submitted a Motion for Change of Counsel, which appeared to be ignored by the Court. Pena was ultimately released for humanitarian reasons on April 10, 2016, but not before being evicted from his apartment of five years (4b).

In an email on August 3, 2017 to Felmly, Tim asks about the status of the blood evidence, and then follows up 10 days later with a (Youngblood) Motion to Dismiss he had drafted.  Felmly responds, “I have never had case where the blood was discarded after a year”, yet still refused to file the motion, telling Tim, “She (Comm. Van Wie) will just deny it”. A complaint to the State Bar of Arizona was dismissed with the explanation that, “(Attorneys) are empowered to refuse to file motions they believe to be frivolous or will not be meritorious” and in direct contradiction to Arizona Rules of Professional Conduct, Rule 42, ER 1.4(a)(3) and ER 1.4(b) (4c). Two separate complaints filed with the State Bar of Arizona and a third to the Maricopa County Contract Services were dismissed (4d).

This is my complaint to the Arizona State Bar against Maricopa County Atty Bill Montgomery.

Arizona Bar Complaint File #19-0620

Maricopa County Atty Bill Montgomery

There is no doubt that the blood evidence was mishandled and Gilbert Police Dept., the prosecution, the Court and Tim's defense attorneys were complicit in not properly disclosing the status of the blood evidence and the misconduct that occurred. On numerous occasions, Tim expressed concerns to the Court the extensive history of complaints of racial profiling, federal lawsuits, and departmental violations of GPD Officer Chad Wright but was rebuffed. As explained by the Court on June 1, 2017, the Brady list is a list of law enforcement officers that have engaged in conduct related to violations of integrity telling Tim, “the State has an absolute 100 percent obligation and they could lose their license if they did not disclose things like, it’s called, Brady violations”, telling Pena, “And I know because I use to prosecute bad officers” (6a).

 But the Court focused attention on not whether misconduct occurred by Wright, but only whether Gilbert Police Dept. had properly referred Wright to the Maricopa County Attorney’s Office for inclusion on the Brady list. The Court, prosecution and Felmly then ‘weaponized’ the Brady list to deny Tim's 6th Amendment rights. During a hearing on May 3, 2018, Felmly told the Court,

“I got the most recent Brady list. They sent it out to us late February, and he's not on the list. And there's nothing I can do about that to change that. And so there's nothing that I'm going to get that I'll be able to impeach that officer with from the Brady list”. The Court agreed, telling Tim, “That kind of just falls into the, like, too bad category” (6b).

As Pro Per, Tim first reached out to Gilbert Police Department after viewing an initial Chain of Custody received from Appellate Attorney Sheri Lauritano for the blood evidence which showed inconsistencies with the timeline of the Blood evidence as compared to that of the Marijuana evidence; most notably, the blood evidence being logged out from GPD Property for trial, but not the marijuana evidence.

On February 26, 2019, Tim submitted a letter to GPD requesting background on Wright and the Chain of Custody for the blood, marijuana and body camera labeled as ‘Tammy Rae' Pena (6c).

On February 27, 2019, Office of Professional Conduct Sergeant Robert First sent a letter to Tim stating the matter would be fully investigated, while at the same time forwarding another letter to “Mr. Stafferi” determining Tim's complaints were, ‘Unfounded’. That letter was then provided ‘word for word’ to Tim two months later on May 03, 2019 (6d).

In an internal memo to an unknown official in the Gilbert Police Department, First wrote:

“He (Tim) attached court transcripts where the court repeatedly explains to him that the blood evidence was not, nor would it be used against him, because the blood had apparently not stayed in a liquid state, but instead had become solid” (6e).

During a video meeting held June 10, 2020, with GPD Chief Michael Soelberg, a GPD Street Supervisor and Gilbert City Attorney, Tim confronted Chief Soelberg on his lack of transparency and accountability within his ranks. And although Tim did not refile his initial complaint, on October 21, 2020, Tim did receive an ‘revised’ conclusion from the Office of Professional Standards-Internal Affairs Sergeant Darren Szczyepanski that determined, “there were violations of policy, law or administrative law” (6f).

Even though the responsibility of Brady violations being referred to MCAO, the Gilbert Police Department has refused to refer Wright’s conduct to the MCAO, telling Tim in a follow up email that he would have to “discuss Brady List issues with Maricopa County Attorney’s Office. They might be able to answer those questions”; a direct contradiction to what Tim was told by the Court on May 3, 2018 (6g).

Tim was repeatedly told that he was facing 10-15 years in prison if he did not consent to a plea agreement fraught with false information in order to secure a prison term of two years for a first-offense possession of 1/3 of one gram of marijuana Tim would occasionally use for his service-connected PTSD (7a).

During a hearing held May 3, 2018, the Court told Tim that he would not be eligible for Proposition 200 because of an arrest for assault after an incident in 2010, whereas a taxicab driver assaulted Tim and then called Phoenix Police. The follow up investigation by PPD determined there was no assault, and the charge was immediately dismissed as confirmed by the Pre-Sentence Report (PSR) (7b).

However, the Court, Prosecutor Jonathan Plicht and Felmly repeatedly questioned the validity of the misdemeanor assault charge and dismissal; a conviction which would have disqualified Tim for probation on a first-offense Class Six felony marijuana possession originally designated as a misdemeanor at the hearing held September 14, 2015 (7c).

On May 3, 2018, the Court specifically told Tim, “I know if you have that conviction, then you can go to prison for the marijuana. Okay? So that's what I can tell you is if you have that conviction, you can go to prison for marijuana” (7d).

The Plea Agreement is also specific: “IF the Petitioner has been convicted of a violent offense, he would be ineligible for Prop. 200”. Knowing that he had never been convicted of any violence, Tim, on the urging of Felmly, consented to the plea agreement, but was never told by Felmly that the ‘prison sentence was stipulated’, and any discussion of an assault charge or conviction was mute. It was not until Pena received a copy of the Plea Agreement as part of the file provided by Lauritano that he was made aware of the false prior criminal history as stated in the Plea Agreement (7e).

But, at sentencing, the Court told Tim that they thought the ‘requirement’ that the violent offense was only an allegation, and that while they were ‘mistaken’ in that the assault was required to be a conviction, nonetheless, the Court still dismissed any eligibility criteria for Prop 200, telling Tim that the Plea Agreement stipulated a prison sentence of two years and that returning to PTSD treatment with Veterans Affairs “was not an option” (7f).

Finally, the Plea Agreement and the PSR falsely state previous convictions for Aggravated DUI in 2006 and 2007 respectfully which make Tim a ‘repeat offender’ and within the 84-month timeline. In truth, both those convictions where adjudicated in 2002 and Tim was already imprisoned in 2006 and 2007 and well outside the purview of a ‘repeat offender’ (7g).

Tim was taken into custody June 8, 2018 after being coerced into accepting an unlawful and falsified Plea Agreement and to await sentencing. During that time, he was interviewed by Helen Ramirez, and then again by Tatiana Torres, both of MCAO Probation for the purposes of compiling a Pre-Sentence Report (PSR). Ms. Ramirez several times emphasized the need to assemble letters in support of treatment, while at the same time, sending a clear warning that Torres was not to be trusted. This warning was realized during the interview when Torres told Tim that she had been told by the Court to deny Prop 200 because of an assault. When Tim again reiterated there was never any assault, Torres then backtracked her statement, saying he was to be denied Prop 200 because of ‘past felonies’; equally false and not a disqualifying factor for Prop 200 (8a).

Although this was a first-offense marijuana possession, the PSR falsely accuses Tim of a history of drug abuse and characterized him as a ‘severe drug abuser’. As falsely stated in the Plea Agreement, Tim was again charged with the 2002 Agg DUI convictions as being in 2006 and 2007 respectfully when Tim was already imprisoned. The PSR went on to falsely allege Pena as a having seven felony convictions for DUI-related offenses although two incidents had duplicate charges of DUI.

Additionally, while the PSR correctly stated the dismissal of the misdemeanor assault charges, Commissioner Van Wie, while denying Tim's Rule 32 Petition on June 6, 2019, determined that this statement of fact was indeed false, and the PSR wasn’t a ‘true reliable statement’ (8b).

This false document was then forwarded to ADOC which then based Tim's  early release eligibility on the truthfulness of this document. It was not until Pena provided evidence of the falsified PSR to ADOC that the agency reversed its decision and approved Tim for early release (8c).

At every turn of this continued nearly six-year nightmare, Tim was refused his Constitutional Rights to the evidence and due process. Every agency entrusted with a fair judicial failed Pena as a defendant in a criminal prosecution that sent him to prison for two years and probation for four years.

Not until Tim confronted Chief Soelberg with the truth and reminded him that when an officer falsifies documentation concerning a criminal case with possible severe consequences to include suicide of the wrongly accused, that officer is lying to the Chief and to the Community.

Tim was subjected to nearly four years of false and inconsistent statements by the Court; Class Four felonies pursuant to Ariz. R. Crim. Code §13-2702 (A)(1 and 2), §13-2702 (B) and Ariz. S. Ct. Canon 81, Rule 1.2. These statements were then used to bully Tim into accepting an unlawful plea agreement supported by a Pre-Sentence Report fraught with inaccuracies and false statements Tim was not availed of until months after being sentenced to prison.

The Court lied to Tim on numerous occasions, then lied again while denying his Rule 32 Petition; a petition that Commissioner Van Wie was not allowed to rule on according to A.R.S. Sup. Ct. Rule 81, Rule 2.11(A)(2)(d) Code of Judicial Conduct disqualification.

Tim was Constitutionally guaranteed to a 4th Amendment right to challenge the evidence yet was prevented time and time again from retesting the evidence or even told what had happened to it. Tim has a Constitutional 6th Amendment right to challenge the integrity of a police officer with dozens of complaints to include federal civil lawsuits for racial profiling and false statements.

Tim has a Constitutional right to a fair judicial process. In this case, the judicial system practically dared Pena to commit suicide. It makes no sense that if Tim were truly guilty of Agg. DUI, the Court would have afforded him access to the evidence.

The State couldn’t prove its case, so it relied on a Superior Court Commissioner with a history of prosecutorial misconduct as a MCAO prosecutor to commit felonies from the bench that sent a Veteran with a Service-Connected Disability to prison because he “used PTSD as an excuse”.

Tim readily acknowledges his past alcohol abuse as it pertains to Driving Under the Influence have wrecked his life. But, multiple DUI’s have both opened Tim up to the struggles that other Veterans with service-connected disabilities including mental health suffer, but he has also committed crimes for which he has been punished.

Pursuant to A.R.S. 13-924, and beginning August 9, 2019, Tim is eligible to receive twenty days credit for each thirty days served on probation which would make him calendar eligible for release from probation on December 9. 2020. Tim would like an opportunity to travel outside of the present jurisdiction to include travel for business and his organization, Veterans Justice Project, which he founded in September 2019 shortly after release from ADOC, that assists justice-involved and incarcerated veterans while advocating for expansion of Veterans Treatment Courts to include low-level felonies.

Throughout this atrocious miscarriage of justice, Tim has maintained a level of honorability and integrity from the get-go, only asking for a fair judicial process, yet was denied simply because he is a veteran with a service-connected PTSD diagnosis and receiving VA Disability.