State v. Ramsey ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
RICHARD RAMSEY, Petitioner.
No. 1 CA-CR 13-0233 PRPC
FILED 08-19-2014
Petition for Review from the Superior Court in Maricopa County
Nos. CR2011-118393-002
CR2011-123891-001
The Honorable Robert E. Miles, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Susan L. Luder
Counsel for Respondent
Richard Ramsey, San Luis
Petitioner
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.
STATE v. RAMSEY
Decision of the Court
T H O M P S O N, Judge:
¶1 Petitioner Richard Wayne Ramsey 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 This matter involves two cases. Ramsey pled guilty to
possession or use of dangerous drugs in the first case and the trial court
sentenced him to 2.5 years imprisonment. In the second case, Ramsey pled
guilty to burglary in the third degree and misconduct involving weapons
and the trial court sentenced him to concurrent terms of six years
imprisonment for both counts. The court further ordered that Ramsey
serve the sentences in the second case consecutive to the sentence in the first
case. Ramsey filed a consolidated pro se petition for post-conviction relief
of-right in the two cases after his counsel found no colorable claims for
relief. The trial court granted relief in part and awarded Ramsey additional
credit for presentence incarceration. The court summarily dismissed the
remainder of the petition and Ramsey now seeks review. We have
jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).
¶3 Ramsey argues the prosecutor engaged in misconduct at
sentencing when the prosecutor informed the court the victim of the
burglary wanted Ramsey to receive the maximum sentence because
Ramsey took weapons, including fully automatic weapons, during the
burglary. Ramsey claims that while he burglarized the property, someone
else had already taken all the weapons. Ramsey argues this representation
deceived the court and caused the court to impose a greater sentence for
burglary. Ramsey also claims his counsel was ineffective when counsel
failed to object to the alleged misrepresentation.
¶4 We deny relief. First, the prosecutor simply relayed the
victim’s opinion regarding why he believed Ramsey deserved the
maximum sentence available. Second, Ramsey pled guilty to burglary
based in part on accomplice liability. Third, of the twenty-nine weapons
taken from the victim, some were fully automatic and police found five of
the non-fully automatic weapons in Ramsey’s residence. Fourth, the trial
court knew Ramsey denied he personally took the weapons even though
he committed burglary. For these reasons, there was no misrepresentation
to the court. Finally, the record shows the trial court did not consider the
weapons as a factor for sentencing purposes in any context. Therefore,
Ramsey suffered no harm.
2
STATE v. RAMSEY
Decision of the Court
¶5 While the petition for review presents additional issues,
Ramsey did not raise those issues in the petition for post-conviction relief
he filed below. A petition for review may not present issues not first
presented to the trial court. State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236,
238 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii
¶6 We grant review and deny relief.
:gsh
3