Opinion
No. 2 CA-CR 2017-0346-PR
01-25-2018
THE STATE OF ARIZONA, Respondent, v. DAMIEN EUGENE BROOKS, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Lisa Marie Martin, Deputy County Attorney, Phoenix Counsel for Respondent Damien Eugene Brooks, Florence In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Maricopa County
No. CR2013440567001DT
The Honorable Alfred M. Fenzel, Judge
REVIEW GRANTED; RELIEF GRANTED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By Lisa Marie Martin, Deputy County Attorney, Phoenix
Counsel for Respondent
Damien Eugene Brooks, Florence
In Propria Persona
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.
ECKERSTROM, Chief Judge:
¶1 Petitioner Damien Brooks seeks review of the trial court's order denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007). Because the trial court erred in concluding Brooks's claims of ineffective assistance of counsel were precluded, we grant relief.
¶2 After a jury trial, Brooks was convicted of shoplifting with artifice or device, attempted armed robbery, armed robbery, and three counts of aggravated assault. The trial court sentenced him to a total of twenty-seven years' imprisonment. His convictions and sentences were affirmed on appeal. State v. Brooks, No. 1 CA-CR 15-0227 (Ariz. App. Mar. 8, 2016) (mem. decision).
¶3 Brooks filed a notice of post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record and was "unable to find any colorable claims for relief in post-conviction relief proceedings." In a pro se, supplemental petition, however, Brooks argued he had received ineffective assistance of counsel in regard to testimony at his grand jury proceeding and various alleged errors at trial and sentencing. The trial court denied relief, concluding "[t]he issues raised by the Defendant were raised, or could have been raised on appeal. As such they [are] precluded . . . ."
¶4 Brooks reasserts his claims on review, and argues "none of the[se] issues were raised," yet he is "now precluded from raising them." Ineffective assistance of counsel claims may not be raised on appeal, but only in post-conviction proceedings. State v. Spreitz, 202 Ariz. 1, ¶ 9 (2002). Here, Brooks has raised claims of ineffective assistance in a timely, first petition following his appeal. See Ariz. R. Crim. P. 32.1, 32.2, 32.4. Thus,
because those claims were not, and could not have been, previously raised they are not precluded.
¶5 We therefore grant relief and remand the matter to the trial court to rule on Brooks's non-precluded claims of ineffective assistance of counsel in the first instance.