Opinion
No. 2 CA-CR 2014-0368-PR
11-24-2014
THE STATE OF ARIZONA, Respondent, v. NICHOLAS RICHARD HENRY, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Lisa Marie Martin, Deputy County Attorney, Phoenix Counsel for Respondent Nicholas Richard Henry, 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Maricopa County
No. CR2012112429003DT
The Honorable Susanna C. Pineda, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL William G. Montgomery, Maricopa County Attorney
By Lisa Marie Martin, Deputy County Attorney, Phoenix
Counsel for Respondent
Nicholas Richard Henry, Florence
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. KELLY, Presiding Judge:
¶1 Nicholas Henry seeks review of the trial court's order summarily denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Henry has not met his burden of establishing such abuse here.
¶2 Henry pled guilty to two counts of child prostitution. The plea agreement stipulated that he would be sentenced to a seven-year, flat-time prison term for the first count and be placed on probation for the second. The trial court sentenced Henry consistent with that agreement. Henry filed a notice of post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but found no claims to raise in a post-conviction proceeding.
¶3 Henry then filed a pro per petition for post-conviction relief arguing his trial counsel had been ineffective in failing to present certain mitigating evidence and, had counsel done so, the court would have sentenced him "to a prison term of seven years at 85% instead of a flat-time sentence." He further requested that the various charges dismissed as part of the plea be dismissed "with prejudice." The trial court summarily dismissed Henry's petition, noting that he had received "the minimum sentence allowable by law" and thus could not demonstrate his counsel had been ineffective, and that dismissal of the other charges without prejudice was proper, because the state may be entitled to try Henry on all charges "should [he], in the future, succeed in overturning his plea."
¶4 On review, Henry claims, for the first time, that his trial counsel had explained to him that he would receive "the minimum sentence of seven . . . years at 85%," that he should accept the flat-time sentence, and that counsel would then "speak to the prosecutor to have the judge . . . modify [the] sentence." We do not address arguments raised for the first time on review. See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980); see also Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review should contain "issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review"). Henry does not otherwise argue the trial court erred in rejecting his claim of ineffective assistance. And, although Henry again asserts he is entitled to have his other charges dismissed with prejudice, he has developed no argument in support of that claim, and we therefore do not address it further. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (insufficient argument waives claim on review).
For the same reason, we do not address Henry's argument that his Rule 32 counsel was ineffective for failing "to research and argue his issues."
¶5 For the reasons stated, although we grant review, we deny relief.