Opinion
No. 2 CA-CR 2013-0248-PR
11-07-2013
THE STATE OF ARIZONA, Respondent, v. VICTOR LAMAR MCKANEY, Petitioner.
M. Lando Voyles, Pinal County Attorney by Ivan S. Abrams, Deputy Attorney, Florence Counsel for Respondent Victor McKaney, Douglas 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NOT FOR PUBLICATION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 Pinal County
No. S1100CR95020551
The Honorable Boyd T. Johnson, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
M. Lando Voyles, Pinal County Attorney
by Ivan S. Abrams, Deputy Attorney, Florence
Counsel for Respondent
Victor McKaney, Douglas
In Propria Persona
MEMORANDUM DECISION
Judge Miller authored the decision of the Court, in which Chief Judge Howard and Presiding Judge Vásquez concurred. MILLER, Judge:
¶1 Petitioner Victor McKaney 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, 166 P.3d 945, 948 (App. 2007). McKaney has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, McKaney was convicted of first-degree murder and sentenced to imprisonment for his natural life without possibility of parole. This court affirmed his conviction and sentence on appeal. State v. McKaney, No. 2 CA-CR 97-0299 (memorandum decision filed Nov. 13, 1997). In 1997, McKaney apparently filed a notice of post-conviction relief. Appointed counsel filed a petition for post-conviction relief and an extension of time for McKaney to file a supplemental pro se petition. The trial court denied relief, but apparently granted two extensions of time for a pro se petition thereafter. McKaney never filed a pro se petition.
¶3 In March 2013, McKaney filed a pro se pleading entitled "Petition for Post-Conviction Relief." In that petition he raised claims of ineffective assistance of appellate and trial counsel and, relying on State v. Bennett, 213 Ariz. 562, 146 P.3d 63 (2006), objected to the fact that the same attorney had represented him on appeal and in his first Rule 32 proceeding. The trial court summarily denied relief.
McKaney alleged trial counsel was ineffective in failing to challenge his confession, to move for an evaluation pursuant to Rule 11, Ariz. R. Crim. P., or to "secure the State's plea offer of not less than 15 years to second degree murder." He claimed appellate counsel was ineffective for failing to argue that the trial court should have directed a Rule 11 evaluation and that trial counsel was ineffective.
¶4 On review, McKaney contends that the trial court abused its discretion in concluding his claim of ineffective assistance of trial counsel was precluded, arguing only that trial counsel was ineffective in "fail[ing] to properly explain to him throughout the merits of the plea offer vis-à-vis going to trial." This claim could have been raised in McKaney's first proceeding, and, as the trial court correctly concluded, is precluded. See Ariz. R. Crim. P. 32.2(a)(3). Because McKaney presents no argument on his remaining claims, we do not address them. See Ariz. R. Crim. P. 32.9(c)(1) (petition for review shall contain "[t]he reasons why the petition should be granted" and "specific references to the record"); State v. Rodriguez, 227 Ariz. 58, n.4, 251 P.3d 1045, 1048 n.4 (App. 2010) (declining to address argument not raised in petition for review). Therefore, although we grant the petition for review, we deny relief.