Opinion
No. 1 CA-CR 13-0786 PRPC
04-30-2015
STATE OF ARIZONA, Respondent, v. WILLIE RAY FINLEY, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Diane Meloche Counsel for Respondent Willie Ray Finley, Florence Petitioner
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR 0000-112216
The Honorable Dawn M. Bergin, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent
Willie Ray Finley, Florence
Petitioner
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Maurice Portley and Judge Michael J. Brown joined. GEMMILL, Judge:
¶1 Petitioner Willie Ray Finley petitions this court for review of the dismissal of his petition for post-conviction relief. We have considered the petition for review and, for the following reasons, grant review and deny relief.
¶2 A jury convicted Finley of armed burglary, armed robbery, unlawful use of means of transportation, and two counts of sexual assault. The trial court sentenced Finley to an aggregate term of fifty-six years' imprisonment and we affirmed his convictions and sentences as modified on direct appeal. State v. Finley, 1 CA-CR 5120 (Ariz. App. Mar. 18, 1982) (mem. decision). Finley now seeks review of the summary dismissal of his latest successive petition for post-conviction relief. We have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).
¶3 Finley argues State v. Gordon, 161 Ariz. 308, 778 P.2d 1204 (1989), constitutes a significant change in the law that requires all of his sentences to run concurrently. Finley also relies on State v. Tinghitella, 108 Ariz. 1, 491 P.2d 834 (1971). We deny relief because Finley raised this same claim pursuant to Gordon and Tinghitella in petitions for post-conviction relief he filed in 1999. Any claim a defendant raised in an earlier post-conviction relief proceeding is precluded. Ariz. R. Crim. P. 32.2(a). While this is not one of the grounds upon which the trial court dismissed the petition, any court on review may find an issue is precluded regardless of whether the State raised preclusion. Ariz. R. Crim. P. 32.2(c); State v. Peek, 219 Ariz. 182, 183, ¶ 4, 195 P.3d 641, 642 (2008).
In his petition for review, Finley avows he did not learn of the Gordon decision until 2013. However, in a petition for post-conviction relief he filed in 1999 in which he raised these same claims, Finley avowed he learned of the Gordon decision in August 1998.
¶4 We grant review and, for these reasons, deny relief.