State v. Ely ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
WILLIAM FRANKLIN ELY, Petitioner.
No. 1 CA-CR 15-0563 PRPC
FILED 6-6-2017
Petition for Review from the Superior Court in Yavapai County
No. P1300CR930389
The Honorable Cele Hancock, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Yavapai County Attorney’s Office, Prescott
By Sheila Sullivan Polk
Counsel for Respondent
William Franklin Ely, Florence
Petitioner
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which
Judge Diane M. Johnsen and Judge Patricia K. Norris joined.
STATE v. ELY
Decision of the Court
C A M P B E L L, Judge:
¶1 William Franklin Ely petitions for review of the summary
dismissal of his petition for post-conviction relief filed pursuant to Rule 32
of the Rules of Criminal Procedure. We have considered the petition for
review and for the reasons stated, grant review but deny relief.
¶2 In 1994, Ely pled guilty, pursuant to a plea agreement, to three
counts of attempted molestation of a child. The trial court sentenced Ely to
a 15-year term of imprisonment on one count and placed him on lifetime
probation on each of the other two counts commencing upon his release
from prison. Ely began serving his concurrent terms of probation when he
was released from prison in 2004.
¶3 In October 2012, the probation department filed a petition to
revoke Ely’s probation. Following a hearing, the trial court revoked Ely’s
probation and sentenced him to two consecutive 15-year prison terms. This
court affirmed the probation revocation and sentences. State v. Ely,
1 CA-CR 13-0081 (Ariz. App. Jan. 16, 2014) (mem. decision).
¶4 Ely filed a timely notice for post-conviction relief. After his
appointed counsel notified the trial court that counsel could find no basis
for post-conviction relief, Ely filed a pro se petition for post-conviction relief,
raising claims of illegal sentence and violation of double jeopardy. In
denying relief, the trial court noted that Ely had appealed from his
probation revocation and sentencing and ruled his claims were precluded
because they could have been raised on appeal.
¶5 On review, Ely argues the trial court erred in denying relief
on his claims of illegal sentence and violation of double jeopardy. We
review a trial court’s denial of post-conviction relief for abuse of discretion.
State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006). Because Ely could have raised
his illegal sentence and violation of double jeopardy claims on direct
appeal, the trial court correctly found those claims precluded. Ariz. R. Crim.
P. 32.2(a); see also State v. Herrera, 183 Ariz. 642, 647 (App. 1995) (holding
appellate counsel’s waiver of other issues on appeal binds a defendant and
these waived issues cannot be resurrected in a subsequent post-conviction
relief proceeding). Thus, there was no abuse of discretion by the trial court
in denying relief on these claims.
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STATE v. ELY
Decision of the Court
¶6 Accordingly, we grant review, but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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