State v. Benally ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DEAN BENALLY, Petitioner.
No. 1 CA-CR 13-0764 PRPC
FILED 4-30-2015
Appeal from the Superior Court in Coconino County
No. CR 2008-0514
The Honorable Cathleen Brown Nichols, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Coconino County Attorney’s Office, Flagstaff
By David W. Rozema
Counsel for Respondent
Dean Benally, Phoenix
Petitioner
STATE v. BENALLY
Decision of the Court
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Donn Kessler joined.
T H U M M A, Judge:
¶1 Petitioner Dean Benally seeks review of the superior court’s
order denying his petition for post-conviction relief, filed pursuant to
Arizona Rule of Criminal Procedure 32.1. Absent an abuse of discretion or
error of law, this court will not disturb a superior court’s ruling on a petition
for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19, 278 P.3d
1276, 1280 (2012). Finding no such error, this court grants review but denies
relief.
¶2 Benally pled guilty to shoplifting and sexual abuse. The plea
agreement provided that Benally would be sentenced to 4.5 years in prison
for shoplifting and a consecutive term of 2.25 years in prison for sexual
abuse. The plea agreement also correctly identified each offense as a non-
dangerous but repetitive felony. At sentencing the superior court misspoke
by identifying the offenses as non-repetitive but sentenced Benally pursuant
to the terms of the plea agreement. Benally now seeks review of the
summary dismissal of his second petition for post-conviction relief. This
court has jurisdiction pursuant to Arizona Rule of Criminal Procedure
32.9(c).
¶3 Benally argues his sentences are not in accordance with the
terms of the plea agreement because the court identified the offenses as
dangerous and non-repetitive rather than dangerous and repetitive as
described in the plea agreement. Benally does not contest that he received
the prison terms specified in the plea agreement.
¶4 Benally could have raised this claim in his of-right petition for
post-conviction relief in 2009. Any claim a defendant raised or could have
raised in an earlier post-conviction relief proceeding is precluded in a
subsequent petition. Ariz. R. Crim. P. 32.2(a). None of the exceptions under
Rule 32.2(b) apply and the evidence Benally cites to support his claim is not
newly discovered but consists of records in his own case file.
¶5 Even if the issue were not precluded as untimely, Benally has
not shown an entitlement to relief. When a discrepancy between an oral
2
STATE v. BENALLY
Decision of the Court
pronouncement of sentence and a sentencing minute entry can be resolved
on the record, it is not necessary to remand for clarification or correction.
State v. Bowles, 173 Ariz. 214, 216, 841 P.2d 209, 211 (App. 1992). The record
shows the superior court misspoke. Even though the court incorrectly
stated the offenses were non-repetitive, the court then immediately
identified the prior offense that made the offenses repetitive. The court
sentenced Benally to the stipulated terms of imprisonment based on the
existence of a prior felony conviction (the record indicates Benally had more
than a dozen prior felony convictions) and gave no indication it would not
follow the terms of the plea agreement.
¶6 While the petition for review with this court presents
additional issues, Benally did not raise those issues in the petition for post-
conviction relief he filed with the superior court. A petition for review with
this court may not present issues the petitioner did not first present to the
superior court. State v. Ramirez, 126 Ariz. 464, 467, 616 P.2d 924, 927 (App.
1980); State v. Wagstaff, 161 Ariz. 66, 71, 775 P.2d 1130, 1135 (App. 1988);
State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991); Ariz. R. Crim.
P. 32.9(c)(1)(ii).
¶7 For these reasons, this court grants review and denies relief.
:ama
3