Court of Appeals of Arizona, Second Division, Department B
August 27, 2013
THE STATE OF ARIZONA, Respondent,
PHILLIP MATTHEW EWING, Petitioner.
Not for Publication Rule 111, Rules of the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF YAVAPAI COUNTY Cause No. P1300CR200901150 Honorable Tina R. Ainley, Judge.
Sheila Sullivan Polk, Yavapai County Attorney By Bill R. Hughes Attorneys for Respondent.
C. Kenneth Ray II, P.C. By C. Kenneth Ray II Attorney for Petitioner.
PHILIP G. ESPINOSA, Judge.
¶1 Petitioner Phillip Ewing seeks review of the trial court's summary dismissal of his proceeding for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We grant review, but deny relief.
¶2 A twelve-member jury found Ewing guilty of attempted murder and aggravated assault, both dangerous offenses, and weapons misconduct. The trial court found Ewing had one historical prior felony conviction and sentenced him as a category two repetitive offender to enhanced prison terms, two aggravated and one presumptive, totaling 27.6 years. We affirmed his convictions and sentences on appeal. State v. Ewing, No. 1 CA-CR 10-0903 (memorandum decision filed Nov. 29, 2011).
¶3 Ewing filed a notice and petition for post-conviction relief in which he alleged he had been erroneously sentenced as a repetitive offender, pursuant to A.R.S. § 13-703, rather than as a dangerous offender pursuant to A.R.S. § 13-704. The trial court summarily denied Ewing's petition, finding his claim of sentencing error precluded by Rule 32.2(a). This petition for review followed.
¶4 We review a trial court's summary denial of post-conviction relief for an abuse of discretion. State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006). On review, Ewing restates his claim of sentencing error and contends "[e]ven if the Sentencing issues were precluded, the Trial Court erred in failing to consider . . . whether such preclusion was the result of ineffective assistance of Trial and/or Appellate counsel under the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984)."
¶5 The court correctly concluded Ewing's claim of sentencing error is precluded. To the extent the specific basis for the court's ruling may be unclear, this claim has been waived, pursuant to Rule 32.2(a)(3), by Ewing's failure to assert it on appeal. The court did not abuse its discretion in summarily denying Ewing's claim of sentencing error on the ground of preclusion.
¶6 Moreover, the trial court neither erred nor abused its discretion in "fail[ing] to address the question" of ineffective assistance of counsel. Ewing did not assert a claim of ineffective assistance of trial or appellate counsel in his petition for post-conviction relief. See State v. Lopez, 223 Ariz. 238, ¶¶ 5-7, 221 P.3d 1052, 1053-54 (App. 2009) (Rule 32.5 requires "the petition itself to "'include every ground known'" for relief), quoting Ariz. R. Crim. P. 32.5. Although he referred generally to such claims in his reply to the state's opposition to his Rule 32 petition, claims raised for the first time in a reply are waived, and a trial court need not consider them. Id. (noting Rule 32.6(d) prohibits a petition's amendment "'except by leave of court upon a showing of good cause'"), quoting Ariz. R. Crim. P. 32.6(d). Moreover, our review is limited to those "issues . . . decided by the trial court, " Ariz. R. Crim. P. 32.9(c)(1)(ii), and we do not consider issues not properly raised below. Cf. State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980) (issues first presented in a petition for review "have obviously never been presented to the trial court for its consideration").
¶7 Ewing has failed to persuade us the trial court abused its discretion in summarily denying his claim for post-conviction relief. Accordingly, although we grant review, relief is denied.
CONCURRING: VIRGINIA C. KELLY, Presiding Judge, PETER J. ECKERSTROM, Judge.