State v. Turner ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
HUNTER JAMES TURNER, Petitioner.
No. 1 CA-CR 13-0600 PRPC
FILED 3-31-2015
Petition for Review from the Superior Court in Maricopa County
No. CR2003-023208-001
CR2004-005904-001
The Honorable Dawn M. Bergin, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane M. Meloche
Counsel for Respondent
Hunter James Turner, Florence
Petitioner
STATE v. TURNER
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Peter B. Swann joined.
W I N T H R O P, Judge:
¶1 Petitioner, Hunter James Turner (“Turner”), seeks review of
the trial court’s order dismissing his petition for post-conviction relief.
After considering the petition for review, we grant review and deny relief
for the reasons stated below.
¶2 In 2004, Turner pled guilty to fraudulent schemes and
artifices, and the trial court sentenced him to an aggravated term of fourteen
years’ imprisonment.1 Turner now seeks review of the summary dismissal
of his first untimely petition for post-conviction relief. We have jurisdiction
pursuant to Arizona Rule of Criminal Procedure (“Rule”) 32.9(c).
¶3 Turner argues the trial court must resentence him pursuant to
Blakely v. Washington, 542 U.S. 296, 301 (2004), because the trial court, rather
than a jury, determined the existence of aggravating factors for sentencing
purposes. Turner further argues his trial counsel was ineffective because
counsel failed to inform Turner about the Blakely decision after sentencing.
The trial court sentenced Turner on May 14, 2004. The Supreme Court
decided Blakely forty-one days later - on June 24, 2004. Id. This was within
the ninety-day period Turner had to initiate an “of-right” post-conviction
relief proceeding. See Ariz. R. Crim. P. 32.4(a).
¶4 We deny relief. First, Turner waited more than eight years
after the Blakely decision to file his first notice of post-conviction relief.
Although Turner argues the failure to present these claims in 2004 was not
his fault because he was not familiar with Blakely until 2012, lack of
1 The minute entry that dismissed the post-conviction relief
proceedings also addressed a second case, in which Turner pled guilty to
theft. Turner’s petition for review, however, identifies only the fraudulent
schemes and artifices case and presents issues only in the context of that
case. Therefore, we address only the fraudulent schemes and artifices case.
2
STATE v. TURNER
Decision of the Court
familiarity with the applicable law is not sufficient to present a colorable
claim for relief pursuant to Rules 32.1(f) and 32.2(b).
¶5 Second, when the trial court sentenced Turner, the court
found Turner had a prior felony conviction for purposes of sentence
enhancement. A trial court may determine the existence of prior
convictions for sentencing purposes. See Blakely, 542 U.S. at 301. Once the
court determined the existence of the prior conviction, the court could then
find and consider other aggravating factors in its determination of the
appropriate sentence to impose. See State v. Martinez, 210 Ariz. 578, 585,
¶ 26, 115 P.3d 618, 625 (2005). This is true even though the court considered
the prior conviction only for purposes of sentence enhancement and did not
also consider that circumstance for purposes of sentence aggravation. See
State v. Bonfiglio, 231 Ariz. 371, 373-74, ¶¶ 10-11, 295 P.3d 948, 950-51 (2013).2
Turner’s ineffective assistance of counsel claim fails for the same reason.
¶6 Although the petition for review arguably presents additional
issues, Turner 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. See State v. Bortz, 169 Ariz. 575, 577, 821 P.2d
236, 238 (App. 1991); State v. Wagstaff, 161 Ariz. 66, 71, 775 P.2d 1130, 1135
(App. 1988), approved as modified by 164 Ariz. 485, 493, 794 P.2d 118, 126
(1990); State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980);
Ariz. R. Crim. P. 32.9(c)(1)(ii).
¶7 For the above reasons, we grant review and deny relief.
:ama
2 Although this is not one of the grounds upon which the trial court
dismissed the petition, we may affirm a result on any basis supported by
the record. See State v. Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 809 (1987).
3