State v. Pittman

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
STEVEN RAY PITTMAN, Petitioner.
No. 1 CA-CR 15-0078 PRPC
FILED 1-17-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2013-113069-001 DT
The Honorable David B. Gass, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane M. Meloche
Counsel for Respondent
Steven Ray Pittman, Florence
Petitioner
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.
STATE v. PITTMAN
Decision of the Court
W I N T H R O P, Judge:
¶1 Petitioner, Steven Ray Pittman, petitions for review of the
summary dismissal of his petition for post-conviction relief of-right.
Pittman pled guilty to burglary in the third degree, and the superior court
sentenced him to six years’ imprisonment as stipulated in the plea
agreement. Pittman argues the superior court had no jurisdiction over his
case because the victim never personally charged Pittman through a sworn
complaint and because the named “plaintiff” in the information, the State
of Arizona, was not the injured party. He further argues there was an
insufficient factual basis to support his plea because there was no evidence
he removed property from the vehicle he burglarized.1
¶2 We deny relief. Regarding the jurisdiction claim, no
requirement exists that the victim personally charge Pittman through a
sworn complaint; nor must the victim appear as the “plaintiff” or charging
authority in the charging instrument. Regarding the factual basis of the
plea, a person commits burglary in the third degree in relevant part if the
person unlawfully enters a nonresidential structure with the intent to
commit any theft or any felony therein. Ariz. Rev. Stat. (“A.R.S.”) § 13-
1506(A)(1) (2010). The definition of “structure” includes vehicles. See
A.R.S. § 13-1501(12) (Supp. 2012). At the change of plea hearing, the court
established that on the date of the incident, and within the jurisdiction of
the court, Pittman unlawfully entered a vehicle with the intent to commit a
theft. This is a sufficient factual basis to support the plea. The extended
record further shows that the victim and at least one law enforcement
officer observed Pittman enter the vehicle and take the victim’s wallet and
cell phone.2
¶3 We do not address Pittman’s additional claim that the
superior court misidentified Pittman’s sentence as a mitigated sentence
because Pittman did not present that issue below. A petition for review
may not present issues not first presented to the trial court. See State v. Bortz,
169 Ariz. 575, 577-78, 821 P.2d 236, 238-39 (App. 1991); State v. Wagstaff, 161
Ariz. 66, 71, 775 P.2d 1130, 1135 (App. 1988), approved as modified, 164 Ariz.
1 Pittman raised additional issues below that he does not present for
review.
2 We may ascertain the factual basis to support a plea from the
extended record. State v. Sodders, 130 Ariz. 23, 25, 633 P.2d 432, 434 (App.
1981). This includes presentence reports, transcripts from preliminary
hearings, proceedings before the grand jury, and other sources. Id.
2
STATE v. PITTMAN
Decision of the Court
485, 794 P.2d 118 (1990); State v. Ramirez, 126 Ariz. 464, 467-68, 616 P.2d 924,
927-28 (App. 1980); Ariz. R. Crim. P. 32.9(c)(1)(ii); see also State v. Swoopes,
216 Ariz. 390, 403, ¶¶ 41-42, 166 P.3d 945, 958 (App. 2007) (holding there is
no review for fundamental error in a post-conviction relief proceeding);
State v. Smith, 184 Ariz. 456, 459, 910 P.2d 1, 4 (1996) (same).
¶4 Accordingly, although we grant review, we deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
3