State v. Cavaness ( 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NOTICE: NOT FOR PUBLICATION.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.
JEFFREY ROBERT CAVANESS, Petitioner.
No. 1 CA-CR 13-0380 PRPC
FILED 11-20-14
Petition for Review from the Superior Court in Maricopa County
No. CR2003-016418-002
The Honorable Cynthia Bailey, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Jeffrey Robert Cavaness, Florence
Petitioner
STATE v. CAVANESS
Decision of the Court
MEMORANDUM DECISION
Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Samuel A. Thumma
joined.
G O U L D, Judge:
¶1 Petitioner, Jeffrey Robert Cavaness, 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 Cavaness pled guilty to drive-by shooting and two counts of
aggravated assault and the trial court sentenced him to an aggregate term
of eighteen years' imprisonment. Cavaness now seeks review of the
summary dismissal of his third successive petition for post-conviction
relief. We have jurisdiction pursuant to Arizona Rule of Criminal
Procedure 32.9(c).
¶3 We deny relief. Cavaness's third petition for post-conviction
relief is identical to his second petition for post-conviction relief, which the
trial court dismissed in January 2010. The only difference is that Cavaness
includes one additional exhibit in this latest petition. That exhibit is a copy
of a pro se motion for "re-hearing" that Cavaness filed in February 2010
when he sought reconsideration of his second petition. Any claim a
defendant raised in an earlier post-conviction relief proceeding is
precluded. Ariz. R. Crim. P. 32.2(a). None of the exceptions under Rule
32.2(b) apply. While these are not the grounds upon which the trial court
dismissed the third petition, we may affirm a decision of a trial court on any
basis supported by the record. State v. Robinson, 153 Ariz. 191, 199, 735 P.2d
801, 809 (1987).
¶4 Further, while the petition for review presents additional
issues, Cavaness 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. 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).
2
STATE v. CAVANESS
Decision of the Court
¶5 We grant review and deny relief.
:jt
3