STATE OF ARIZONA v. GEOFFREY PAUL GAGNON

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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 JUN 27 2012 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. GEOFFREY PAUL GAGNON, Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2012-0141-PR DEPARTMENT B MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF MARICOPA COUNTY Cause No. CR2007114875001DT Honorable George H. Foster, Jr., Judge REVIEW GRANTED; RELIEF DENIED William G. Montgomery, Maricopa County Attorney By Catherine Leisch Geoffrey Paul Gagnon Phoenix Attorneys for Respondent Douglas In Propria Persona K E L L Y, Judge. ¶1 After a jury trial, petitioner Geoffrey Gagnon was convicted of transportation of a dangerous drug. We affirmed the conviction and sentence on appeal. State v. Gagnon, No. 1 CA-CR 2008-0278, ¶ 14 (memorandum decision filed June 25, 2009). Gagnon then filed a petition for post-conviction relief, pursuant to Rule 32, Ariz. R. Crim. P., claiming the admission at trial of his statements and confession violated his right to due process because police officers did not electronically record them. The trial court summarily dismissed the petition for post-conviction relief, and Gagnon filed a petition for review. We will not disturb the court s ruling unless it clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). ¶2 Relying on State v. Jones, 203 Ariz. 1, 49 P.3d 273 (2002), Gagnon asserts the trial court erred in summarily dismissing his petition because a recording of his statements and confession would provide the best evidence of a voluntary statement. Although our supreme court stated in Jones that [r]ecording the entire interrogation process provides the best evidence available of the voluntariness of a defendant s statement, it concluded that the admission of an unrecorded statement is within the discretion of the trial court. 203 Ariz. 1, ¶¶ 18-19, 49 P.3d at 279. Gagnon acknowledges this but nevertheless argues we should hold that the [C]onstitution requires the recording of interrogations. ¶3 However, as the state points out, Gagnon did not raise this claim on direct appeal. See Gagnon, No. 1 CA-CR 2008-0278, ¶ 1. Rule 32.2(a)(3), Ariz. R. Crim. P., precludes a defendant from obtaining post-conviction relief based upon any ground that has been waived at trial, on appeal, or in any previous collateral proceeding. Gagnon acknowledges the state s argument that his claim is precluded, but he fails to cite any authority that would except this claim from the rule of preclusion. See Ariz. R. Crim. P. 2 32.2(b); State v. Shrum, 220 Ariz. 115, ¶ 13, 203 P.3d 1175, 1178 (2009) ( Because the general rule of preclusion serves important societal interests, Rule 32 recognizes few exceptions. ). Gagnon s claim for relief could have been raised on direct appeal, and he therefore is precluded from raising it in post-conviction proceedings. although we grant review, relief is denied. /s/ Virginia C. Kelly VIRGINIA C. KELLY, Judge CONCURRING: /s/ Garye L. VÃ¡squez GARYE L. VÃ SQUEZ, Presiding Judge /s/ Philip G. Espinosa PHILIP G. ESPINOSA, Judge 3 Accordingly,

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