State v. Wells ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CHRISTOPHER JOHN WELLS, Petitioner.
No. 1 CA-CR 13-0882 PRPC
FILED 6-4-2015
Appeal from the Superior Court in Maricopa County
No. CR2010-160189-001
The Honorable Christopher T. Whitten, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Christopher John Wells, Buckeye
Petitioner
STATE v. WELLS
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Lawrence F. Winthrop and Judge Samuel A. Thumma joined.
K E S S L E R, Judge:
¶1 Christopher John Wells petitions this Court for review from
the dismissal of his petition for post-conviction relief. We have considered
the petition for review and, for the reasons stated, grant review and deny
relief.
¶2 Wells pled guilty to armed robbery and aggravated assault.
The trial court sentenced him to an aggregate term of 9.25 years’
imprisonment as stipulated in the plea agreement. Wells seeks review of
the summary dismissal of his first untimely petition for post-conviction
relief. We have jurisdiction pursuant to Arizona Revised Statutes section
13-4239(C) (2010). See also Ariz. R. Crim. P. 32.9(c).
¶3 Wells contends his aggravated sentence of 9.25 years’
imprisonment for armed robbery is illegal because the trial court, rather
than a jury, determined the existence of aggravating circumstances for
sentencing purposes. He also contends his trial counsel was ineffective.
¶4 Wells could have raised both of these issues in a timely
petition for post-conviction relief of-right pursuant to Arizona Rule of
Criminal Procedure 32.1. See Ariz. R. Crim. P. 32.4(a) (notice of petition for
post-conviction relief in “a Rule 32 of-right proceeding” must be filed
within ninety days after the entry of judgment). Any claim a defendant
could have raised in an earlier post-conviction relief proceeding is
precluded. Ariz. R. Crim. P. 32.2(a). Although Wells asserts he is entitled
to raise these issues in an untimely manner, see Ariz. R. Crim. P. 32.2(b),
based on a significant change in the law, see Ariz. R. Crim. P. 32.1(g), Wells
has failed to present a colorable claim because he does not identify or
otherwise explain the change in the law. Regarding the claim of ineffective
assistance of counsel, Wells has also failed to present a colorable claim for
relief because he does not explain how his counsel was ineffective.
¶5 If Wells meant to incorporate by reference the issues and
arguments he presented below in his petition for post-conviction relief
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STATE v. WELLS
Decision of the Court
rather than making the arguments in his petition for review, he may not do
so. Ariz. R. Crim. P. 32.9(c)(1)(iv) (requiring petition for review contain
“[t]he reasons why the petition should be granted” and either an appendix
or “specific references to the record,” but “shall not incorporate any
document by reference, except the appendices”); Ariz. R. Crim. P.
32.9(c)(1)(ii) (requiring petition for review state “the issues which were
decided by the trial court and which the defendant wishes to present to the
appellate court for review”); State v. Rodriguez, 227 Ariz. 58, ¶ 12 n.4, 251
P.3d 1045, 1048 n.4 (App. 2010) (declining to address argument not raised
in petition for review).
¶6 We grant review and deny relief.
:ama
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