State v. Denham ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
KURT ALLEN DENHAM, Petitioner.
No. 1 CA-CR 13-0718 PRPC
FILED 3-17-2015
Petition for Review from the Superior Court in Maricopa County
No. CR 2011-005737-001
The Honorable Bruce R. Cohen, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Gerald R. Grant
Counsel for Respondent
Kurt Allen Denham, Florence
Petitioner
MEMORANDUM DECISION
Presiding Judge Margaret H. Downie, Judge Patricia K. Norris and Judge
Randall M. Howe delivered the decision of the court.
STATE v. DENHAM
Decision of the Court
PER CURIAM:
¶1 Kurt Allen Denham petitions for review from the superior
court’s dismissal of his petition for post-conviction relief. For the following
reasons, we grant review but deny relief.
¶2 Denham pled guilty to three counts of attempted sexual
exploitation of a minor, all dangerous crimes against children, and two
counts of possession of obscene items. The superior court sentenced
Denham to consecutive terms of 1.5 years’ imprisonment for the two counts
of possessing obscene items and placed him on lifetime probation for the
remaining counts. Denham filed a pro se petition for post-conviction relief
of-right after his counsel found no colorable claims for relief. The superior
court summarily dismissed the petition, and Denham now seeks review.
This Court has jurisdiction pursuant to Arizona Rule of Criminal Procedure
32.9(c).
¶3 Rather than identify specific claims for relief supported by
independently developed arguments, citations to legal authority and
complete citations to the record, Denham attempts to present issues for
review by incorporating by reference the petition for post-conviction relief
he filed in the superior court. However, a petition for review may not
incorporate by reference any issue or argument. The petition must set forth
specific claims, present arguments supported by legal authority, and
include citations to the record. Ariz. R. Crim. P. 32.5, 32.9(c); State v. Bortz,
169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991). “[C]ompliance with Rule
32 is not a mere formality.” Canion v. Cole, 210 Ariz. 598, 600, ¶ 11, 115 P.3d
1261, 1263 (2005). On the contrary, a petitioner must “strictly comply” with
Rule 32 in order to obtain relief. Id.¶4 The one argument Denham arguably presents in appropriate
fashion is that his trial counsel was ineffective by failing to challenge the
indictment based on its failure to include a sufficient “statement of facts.”
Even so, relief is inappropriate as to this issue. First, a plea agreement
waives all non-jurisdictional defenses, errors, and defects that occurred
prior to the plea. State v. Moreno, 134 Ariz. 199, 200, 655 P.2d 23, 24 (App.
1982), rev'd on other grounds, State ex rel. Dean v. Dolny, 161 Ariz. 297, 778
P.2d 1193 (1989). Second, an indictment is legally sufficient if it informs the
defendant of the essential elements of the charge, is definite enough to
permit the defense to prepare to defend against the charge, and affords the
defendant protection from subsequent prosecution for the same offense.
See State v. Rickard-Hughes, 182 Ariz. 273, 275, 895 P.2d 1036, 1038 (App.
1995). There is no requirement that the indictment outline the theory by
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STATE v. DENHAM
Decision of the Court
which the State will try the case; the indictment need only contain sufficient
notice of the charges. State v. Schwartz, 188 Ariz. 313, 320, 935 P.2d 891, 898
(App. 1996). The indictment in this case was more than sufficient, and trial
counsel was not ineffective for failing to challenge the absence of a more
specific statement of facts for each count.
¶5 Finally, the petition for review includes issues that Denham
did not raise in the petition for post-conviction relief filed in the superior
court. A petition for review may not present issues not first presented to
the superior court. Bortz, 169 Ariz. at 577, 821 P.2d at 238; State v. Wagstaff,
161 Ariz. 66, 71, 775 P.2d 1130, 1135 (App. 1988); State v. Ramirez, 126 Ariz.
464, 467, 616 P.2d 924, 927 (App. 1980); see Ariz. R. Crim. P. 32.9(c)(1)(ii).
CONCLUSION
¶6 For the reasons stated, we grant review but deny relief.
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