Opinion
No. 1 CA-CR 13-0549 PRPC
01-27-2015
STATE OF ARIZONA, Respondent, v. MICHAEL TOD WHITE, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Diane Meloche Counsel for Respondent Michael Tod White, 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR 1993-090465
The Honorable Robert E. Miles, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent
Michael Tod White, Florence
Petitioner
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Maurice Portley joined.
THOMPSON, Judge
¶1 Petitioner Michael Tod White petitions this court for review from the dismissal of his petition for post-conviction relief. We have considered the petition for review and, for the reasons stated, grant review and deny relief.
¶2 White pled guilty to molestation of a child and attempted kidnapping in 1994. The trial court sentenced him to twenty-two years' imprisonment for molestation and placed him on lifetime probation for attempted kidnapping. White 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 In his petition for review, White contends the prosecutor engaged in misconduct when he hid and/or otherwise failed to disclose exculpatory evidence; the prosecutor did not conduct the grand jury proceedings in a legal manner and otherwise engaged in other various misconduct; the trial court erred when the court, rather than a jury, determined the existence of aggravating factors for sentencing purposes; his trial counsel was ineffective for various reasons and his pleas were coerced and were not otherwise knowing, intelligent and voluntary.
¶4 We deny relief. White could have raised all these issues in a prior post-conviction relief proceeding. In fact, White raised claims of ineffective assistance of counsel in one prior petition for post-conviction relief and raised the same claims regarding his sentences in two prior petitions. Any claim a defendant raised or could have raised in an earlier post-conviction relief proceeding is precluded. Ariz. R. Crim. P. 32.2(a). None of the exceptions under Rule 32.2(b) apply. While White argues his sentencing claim is timely due to significant changes in the law, White relied upon those same changes in the law the first two times he challenged his sentences. See Blakely v. Washington, 542 U.S. 296, 301 (2004). While White also argues his other claims are based on newly discovered evidence, the evidence he relies upon is his indictment, his plea agreement and the transcripts of the grand jury and pretrial proceedings, and he does not contest he has possessed those documents for years. Therefore, the evidence is not "newly discovered." See State v. Bilke, 162 Ariz. 51, 52-53, 781 P.2d 28, 28-29 (1989) (post-conviction relief based on newly discovered evidence). Finally, White argues the failure to raise these claims in a timely fashion is not his fault, but he offers no viable explanation for why.
¶5 While the petition for review presents additional issues, White did not raise those issues in the petition for post-conviction relief he filed below. A petition for review may not present issues not first presented to the trial court. State v. Ramirez, 126 Ariz. 464, 467, 616 P.2d 924, 927 (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)(1)(ii).
¶6 We grant review and deny relief.