Opinion
No. 1 CA-CR 15-0164 PRPC
08-03-2017
STATE OF ARIZONA, Respondent, v. GEORGE JONES, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Amanda M. Parker Counsel for Respondent George Jones, 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Petition for Review from the Superior Court in Maricopa County
No. CR2011-007684-001
The Honorable Warren J. Granville, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Maricopa County Attorney's Office, Phoenix
By Amanda M. Parker
Counsel for Respondent George Jones, Florence
Petitioner
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined. THOMPSON, Judge:
¶1 Petitioner George Jones petitions this court for review from the summary dismissal of his first petition for post-conviction relief. A jury convicted Jones of first degree murder and the trial court sentenced him to imprisonment for life with a possibility of release after twenty-five years. This court affirmed his conviction and sentence on direct appeal.
¶2 The petition for review presents a number of issues, many of which Jones did not raise in the petition he filed below. While Jones presented some of these new issues in the reply and/or motion for reconsideration he filed below, a defendant may not amend a petition for post-conviction relief to raise new issues absent leave of court upon a showing of good cause. Ariz. R. Crim. P. 32.6(d). Jones did not seek permission to raise these new issues and the superior court did not consider any issues Jones did not raise in his original petition. This court will also not consider any issue on review that Jones did not first raise in his petition for post-conviction relief. State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (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). See also State v. Swoopes, 216 Ariz. 390, 403, ¶¶ 40-41, 166 P.3d 945, 958 (App. 2007); State v. Smith, 184 Ariz. 456, 459, 910 P.2d 1, 4 (1996) (both holding there is no review for fundamental error in a post-conviction relief proceeding). We further note that Jones did not provide the superior court with any documentation to support his claims until he filed his motion for reconsideration. The superior court did not consider these new materials and we will not consider them on review.
¶3 Even so, Jones properly presents several issues for review. Jones argues he has newly discovered evidence that he suffers from a mental disorder. Jones argues this condition rendered him incompetent and made his statements to investigators involuntary. Jones conceded below, however, that no mental health expert has ever examined him. Further, he has never provided medical records to support his claim. We deny relief on this issue because Jones has failed to present a colorable claim that he suffered from a mental disorder at any relevant time. For these same reasons, we also deny relief on Jones's claims that his trial counsel was ineffective for failing to raise issues founded on Jones's mental health.
¶4 Jones also argues his trial counsel was ineffective when counsel failed to address inconsistencies and/or alleged perjury in witnesses' trial testimony and/or their interviews. We deny relief on this issue because Jones did not identify any witnesses, testimony or statements at issue in his petition below and we will not address the new information Jones now presents on review. Jones further argues that investigators obtained his statements in violation of Miranda v. Arizona, 384 U.S. 436 (1966). We deny relief on this issue because Jones could have raised it on direct appeal. Any claim a defendant raised or could have raised on direct appeal is precluded. Ariz. R. Crim. P. 32.2(a). Finally, Jones argues his appellate counsel was ineffective for filing an appellate brief pursuant to Anders v. California, 386 U.S. 738 (1967). We deny relief because Jones's petition below did not identify any cognizable claims for appellate relief that counsel should have raised. Further, appellate counsel is not required to "raise every possible or even meritorious issue on appeal." State v. Herrera, 183 Ariz. 642, 647, 905 P.2d 1377, 1382 (App. 1995). "[T]he petitioner must offer evidence of a reasonable probability that but for counsel's unprofessional errors, the outcome of the appeal would have been different." Id. Jones has failed to do so.
The superior court addressed additional issues that Jones does not present for review. --------
¶5 We grant review, but deny relief.