STATE OF ARIZONA v. ZACKARIAH ALEXUS SURGICK

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FILED BY CLERK NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 MAY 23 2012 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. ZACKARIAH ALEXUS SURGICK, Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2012-0115-PR DEPARTMENT B MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF MARICOPA COUNTY Cause No. CR2004022835001DT Honorable Christopher Whitten, Judge REVIEW GRANTED; RELIEF DENIED William G. Montgomery, Maricopa County Attorney By Andrea L. Kever Zackariah A. Surgick Phoenix Attorneys for Respondent Buckeye In Propria Persona V Ã S Q U E Z, Presiding Judge. Petitioner Zackariah Surgick seeks review1 of the trial court s order ¶1 summarily dismissing his successive petition for post-conviction relief filed pursuant to 1 Surgick filed in this court a Motion for Reconsideration/Petition for Review and a Memorandum Decision Petition for Review. The first filing appears to be a 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). ¶2 In 2005, Surgick was convicted after a jury trial of armed robbery and aggravated assault and was sentenced to consecutive, aggravated prison terms totaling thirty-six years. His convictions were affirmed on appeal. State v. Surgick, No. 1 CACR 05-0849 (memorandum decision filed Mar. 22, 2007). Surgick filed a petition for post-conviction relief raising various claims and requesting that counsel be appointed. The trial court struck that petition and appointed counsel, and counsel filed a notice stating he had reviewed the record but was unable to raise any viable issues under Rule 32. ¶3 Surgick then filed a supplemental, pro se petition for post-conviction relief, claiming that his trial and Rule 32 counsel had been ineffective, that his confession had been obtained in violation of Miranda,2 that there was no DNA3 evidence linking him to the crimes, that several of his constitutional and federal civil rights had been violated when his attorney and the state had prevented him and his mother from testifying at trial, and that his sentence constitutes cruel and unusual punishment because he was receiving inadequate medical care in prison. The trial court summarily denied relief. Surgick did not seek review of that order under Rule 32.9(c). In 2011, Surgick filed another petition for post-conviction relief raising essentially the same claims and asserting various violations of his constitutional rights. The trial court summarily recitation of the procedural history of his case, while the second raises his substantive claims. We have considered both filings in addressing this matter. 2 Miranda v. Arizona, 384 U.S. 436 (1966). 3 Deoxyribonucleic acid. 2 dismissed that petition, concluding Surgick had raised no claims that properly could be raised in a successive petition for post-conviction relief. ¶4 On review, Surgick reiterates his claims that his mother was improperly prevented from testifying, that his confession was involuntary, that his trial counsel had been ineffective, that his sentence constitutes cruel and unusual punishment, and that his due process rights were violated. But Surgick identifies no error, and we find none, in the trial court s conclusion that these claims may not be raised in a successive petition for post-conviction relief. Surgick s claims are precluded because he either has raised or had the opportunity to raise them on appeal or in his previous Rule 32 proceeding, Ariz. R. Crim. P. 32.2(a)(2), (3), and none of the claims listed in his petition for review fall within the exceptions to preclusion in Rule 32.2(b). See also Ariz. R. Crim. P. 32.1(d), (e), (f), (g), (h). ¶5 Although review is granted, relief is denied. /s/ Garye L. VÃ¡squez GARYE L. VÃ SQUEZ, Presiding Judge CONCURRING: /s/ Philip G. Espinosa PHILIP G. ESPINOSA, Judge /s/ Virginia C. Kelly VIRGINIA C. KELLY, Judge 3

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