State v. Keeten ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
GREGORY KEETEN, Petitioner.
No. 1 CA-CR 15-0027 PRPC
FILED 12-22-2016
Petition for Review from the Superior Court in Maricopa County
No. CR2013-108489-001
The Honorable Robert L. Gottsfield, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent
Gregory Keeten, San Luis
Petitioner Pro Se
STATE v. KEETEN
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Patricia K. Norris joined.
M c M U R D I E, Judge:
¶1 Defendant Gregory Keeten petitions this court for review
from the summary dismissal of his petition for post-conviction relief of-
right. Defendant pled guilty to misconduct involving weapons and the
superior court sentenced him to an aggravated term of 3.75 years’
imprisonment. Defendant argues the superior court erred when it
sentenced him to an aggravated term based in part on (1) the existence of
Defendant’s prior convictions, and (2) the court’s allegedly mistaken belief
that Defendant was not candid when he avowed in the plea agreement that
he had only two prior convictions “in any jurisdiction under any name”
when, in fact, Defendant had four additional convictions in California.
Defendant further argues the aggravated sentence violated “the spirit” of
the plea agreement.
¶2 We deny relief because Defendant did not raise any of these
issues in superior court. Below, Defendant presented three claims of
ineffective assistance of counsel. While he argued counsel’s ineffectiveness
resulted in the court’s imposition of the aggravated sentence, Defendant
did not present the substantive claims of error he now presents for review.
A petition for review may only present issues that were argued first to the
trial court. State v. Ramirez, 126 Ariz. 464, 468 (App. 1980); State v. Wagstaff,
161 Ariz. 66, 71 (App. 1988); State v. Bortz, 169 Ariz. 575, 577–78 (App. 1991);
Ariz. R. Crim. P. 32.9(c)(1)(ii). See also State v. Swoopes, 216 Ariz. 390, 403, ¶
41 (App. 2007); State v. Smith, 184 Ariz. 456, 459 (1996) (holding no review
for fundamental error in a post-conviction relief proceeding).
¶3 Even if we were to construe the superior court’s findings as
evidence that Defendant raised these claims below, we find no error.
Regardless of whether Defendant was candid with the court regarding his
prior convictions, the superior court did not abuse its discretion by
considering his prior convictions as an aggravating factor during
sentencing. See Ariz. Rev. Stat. (“A.R.S.”) § 13-701(D)(11) (2013).
Furthermore, Defendant’s plea agreement specifically stated a range of
2
STATE v. KEETEN
Decision of the Court
possible sentences based on his charges; and advised Defendant that the
sentence to be imposed was within the discretion of the superior court.
¶4 We grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
3