State v. Parker ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 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.
WILLIE LEE PARKER, Petitioner.
No. 1 CA-CR 13-0002 PRPC
FILED 4-1-2014
Petition for Review from the Superior Court in Maricopa County
Nos. CR2008-165225-001
CR2009-180397-001
CR2010-005826-001
The Honorable Pamela Hearn Svoboda, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
William Lee Parker, Phoenix
Petitioner Pro Se
STATE v. PARKER
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani, Judge Margaret H. Downie and Judge
Michael J. Brown delivered the decision of the court.
PER CURIAM:
¶1 Willie Lee Parker petitions for review from the dismissal of
his petition for post-conviction relief. We grant review but deny relief.
¶2 Parker pled guilty to one count of aggravated driving under
the influence ("DUI") in three separate cases; the trial court sentenced him
to stipulated, concurrent terms of ten years' imprisonment for each count.
The counts were aggravated because Parker committed each DUI while
his driver's license or privilege to drive was suspended, canceled,
revoked, or refused, or while a restriction was placed on his license as a
result of a prior DUI. See Ariz. Rev. Stat. ("A.R.S.") § 28-1383(A)(1). Parker
did not file a timely petition for post-conviction relief of-right in any of the
three cases. See Ariz. R. Crim. P. 32.4(a) (defendant must initiate an
"of-right" Rule 32 proceeding within 90 days after entry of judgment and
sentence). He later filed a pro se consolidated petition for post-conviction
relief which the trial court summarily dismissed. Parker now seeks
review. We have jurisdiction pursuant to Arizona Rule of Criminal
Procedure 32.9(c).
¶3 Parker contends the factual basis for each plea was
insufficient because newly discovered evidence shows that his license was
not suspended, canceled, revoked, refused, or otherwise restricted at the
time of the offenses. He further argues that his trial counsel was
ineffective for failing to raise this issue below. The trial court ruled that
the assertions regarding the factual bases for the pleas and claim of
ineffective assistance of counsel were precluded as untimely. It further
ruled that the supporting evidence did not qualify as newly discovered
evidence.
¶4 We deny relief. Parker could have raised his claims
regarding the factual bases for the pleas and ineffective assistance of
counsel in a timely petition for post-conviction relief of-right. Further, he
could have supported those timely claims with the documentation he now
claims to be newly discovered evidence. Parker offers no explanation for
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STATE v. PARKER
Decision of the Court
failing to present his claims, supported with the documentation, in a
timely of-right petition for post-conviction relief. Any claim a defendant
raised or could have raised in an earlier post-conviction relief proceeding
is precluded. Ariz. R. Crim. P. 32.2(a). Further, the documents Parker
asserts are newly discovered do not prove that his license was not
suspended, canceled, revoked, refused, or otherwise restricted at the time
of the offenses.
¶5 Although the petition for review arguably presents
additional issues, Parker did not raise those issues in the petition for
post-conviction relief 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 For the reasons stated, we grant review and deny relief.
:MJT
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