State v. Tiggs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
PAUL LEVON TIGGS II, Petitioner.
No. 1 CA-CR 15-0229 PRPC
FILED 4-11-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2011-114702-001
The Honorable Joseph C. Welty, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Arthur G. Hazelton Jr.
Counsel for Respondent
Rosenstein Law Group PLLC, Scottsdale
By Craig J. Rosenstein
Counsel for Petitioner
STATE v. TIGGS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kenton D. Jones and Judge Donn Kessler joined.
D O W N I E, Judge:
¶1 Paul Levon Tiggs II petitions for review from the denial of his
petition for post-conviction relief filed pursuant to Arizona Rule of
Criminal Procedure 32. For the following reasons, we grant review but
deny relief.
¶2 A jury convicted Tiggs of two counts of attempted voyeurism
and one count of stalking. The superior court suspended sentence and
placed Tiggs on probation for ten years. This Court affirmed Tiggs’s
convictions and disposition. State v. Tiggs, 1 CA-CR 12-0373, 2013 WL
5503686 (Ariz. App. Oct. 1, 2013) (mem. decision).
¶3 Tiggs thereafter filed a timely petition for post-conviction
relief, arguing that his appellate counsel provided ineffective assistance and
that the offense of voyeurism, as defined in Arizona Revised Statutes
(“A.R.S.”) section 13-1424, is unconstitutionally vague. Tiggs further
moved to have the judge who presided over his trial and sentencing
transfer the post-conviction relief proceeding to another judge. The court
denied the motion to transfer, and, finding that Tiggs had failed to present
a colorable claim of ineffective assistance of appellate counsel, summarily
dismissed the petition for post-conviction relief.
¶4 In his petition for review, Tiggs challenges the superior
court’s rulings on both the petition for post-conviction relief and the motion
for transfer. We review the dismissal of a petition for post-conviction relief
for an abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006).
We may uphold the trial court’s ruling “on any basis supported by the
record.” State v. Robinson, 153 Ariz. 191, 199 (1987).
¶5 In dismissing the petition, the superior court issued a detailed
ruling that clearly identified, fully addressed, and correctly resolved the
claims of ineffective assistance of appellate counsel. The court did so in a
thorough, well-reasoned manner that will allow any future court to
understand its ruling. Under these circumstances, “[n]o useful purpose
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STATE v. TIGGS
Decision of the Court
would be served by this court rehashing the trial court’s correct ruling in a
written decision.” State v. Whipple, 177 Ariz. 272, 274 (App. 1993).
¶6 As for the claim that A.R.S. § 13-1424 is unconstitutionally
vague, Tiggs is precluded from raising this issue in a post-conviction relief
proceeding because it was not presented on appeal. Ariz. R. Crim. P.
32.2(a). Although the superior court did not expressly label this claim
precluded, “any court on review of the record may determine and hold that
an issue is precluded regardless of whether the State raises preclusion.”
Ariz. R. Crim. P. 32.2(c). The superior court could have found, and we do
find, that the vagueness challenge is precluded because it was not raised on
appeal. See State v. Bolton, 182 Ariz. 290, 298 (1995) (“Failure to argue a claim
on appeal constitutes waiver of that claim.”); State v. Herrera, 183 Ariz. 642,
647 (App. 1995) (issues waived on appeal cannot be resurrected in later
post-conviction proceeding).
¶7 Nor did the superior court err by denying Tiggs’s motion for
transfer. Rule 32.4 states that a post-conviction relief proceeding “shall be
assigned to the sentencing judge where possible,” except “[i]f it appears
that the sentencing judge’s testimony will be relevant.” Ariz. R. Crim. P.
32.4(e). Because Tiggs’s petition was properly dismissed without the need
for an evidentiary hearing, the court did not abuse its discretion in
determining that the trial judge’s testimony would be neither relevant nor
necessary in resolving the petition.
CONCLUSION
¶8 For the reasons stated, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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