Opinion
No. 1 CA-CR 13-0341 PRPC
02-12-2015
STATE OF ARIZONA, Respondent, v. MARK ALLEN MOSS, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Diane Meloche Counsel for Respondent Mark Allen Moss, San Luis 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2011-165254-001
The Honorable Roger E. Brodman, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent
Mark Allen Moss, San Luis
Petitioner
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.
SWANN, Judge:
¶1 Mark Allen Moss 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 Moss pled guilty to possession of dangerous drugs for sale and three counts of sale or transportation of dangerous drugs. The trial court sentenced him to an aggregate term of 12 years' imprisonment. Moss did not file a timely petition for post-conviction relief of right. Moss now seeks review of the summary dismissal of his first untimely petition for post-conviction relief. We have jurisdiction pursuant to Ariz. R. Crim. P. 32.9(c).
¶3 Moss argues the state violated his right to privacy when an informant working for the state called Moss at home on Moss's private telephone line and asked to purchase drugs. Moss further argues his trial counsel was ineffective when he failed to raise this issue below.
¶4 We deny relief. First, Moss could have raised these issues in a timely petition for post-conviction relief of right. He offers no reason for why he failed to do so. Any claim a defendant 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. Second, even if Moss had a valid constitutional claim, Moss waived that claim when he pled guilty. A plea agreement waives all non-jurisdictional defenses, errors and defects that occurred prior to the plea. State v. Moreno, 134 Ariz. 199, 200, 655 P.2d 23, 24 (App. 1982). The waiver of non-jurisdictional defects includes deprivations of constitutional rights. See Tollett v. Henderson, 411 U.S. 258, 267 (1973).
¶5 While the petition for review presents additional issues, Moss 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); see Ariz. R. Crim. P. 32.9(c)(1)(ii).
¶6 We grant review and deny relief.