State v. Stevens ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
RAYMOND ROJAS STEVENS, Petitioner.
No. 1 CA-CR 12-0747 PRPC
FILED 3-6-2014
Petition for Review from the Superior Court in Maricopa County
No. CR2006-146397-001
CR2010-138650-001
The Honorable Phemonia L. Miller, Pro Tem
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Arizona Attorney General, Phoenix
By Joseph T. Maziarz
Counsel for Respondent
Raymond Rojas Stevens, Florence
Petitioner
STATE v. STEVENS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Lawrence F. Winthrop joined.
J O N E S, Judge:
¶1 Petitioner Raymond Rojas Stevens petitions this court for
review from the dismissal of his petition for post-conviction relief.
Presiding Judge Orozco, and Judges Winthrop and Jones have considered
the petition for review and, for the reasons stated, grant review but deny
relief.
¶2 In 2007, Stevens pled guilty to aggravated assault and the
trial court sentenced him to 2.5 years imprisonment. In 2011, Stevens pled
guilty to aggravated DUI and the trial court sentenced him to five years
imprisonment. As stipulated in the plea agreement, the trial court used
Stevens's prior aggravated assault conviction to enhance the DUI
sentence.
¶3 In August 2012, Stevens filed a pro se consolidated petition
for post-conviction relief in both cases. That petition for post-conviction
relief served as a timely "of-right" petition for post-conviction relief in the
DUI case, but was the first untimely petition he filed in the aggravated
assault case. Ariz. R. Crim. P. 32.4(a) (A defendant must initiate a Rule 32
of-right proceeding within ninety days of the entry of judgment and
sentence.). The trial court dismissed the petition and Stevens now seeks
review. We have jurisdiction pursuant to Arizona Rule of Criminal
Procedure 32.9(c).
¶4 Giving Stevens the benefit of the doubt as to the issues
properly presented for review, Stevens argues the trial court could not
enhance the range of sentence for his DUI conviction with the prior
conviction for aggravated assault because at some unidentified time, the
trial court "dismissed" the aggravated assault case and/or conviction. We
deny review. The record on review for the aggravated assault case
establishes neither the charge nor the resulting conviction was dismissed
and Stevens provides no evidence to the contrary.
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STATE v. STEVENS
Decision of the Court
¶5 While the petition for review arguably presents additional
issues, Stevens 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. Bortz, 169 Ariz. 575, 577, 821 P.2d 236,
238 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).
¶6 For the above reasons, we grant review and deny relief.
:mjt
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