STATE OF ARIZONA v. ADONIS LEWIS
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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 28 2012 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. ADONIS LEWIS, Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2012-0149-PR DEPARTMENT B MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF MARICOPA COUNTY Cause No. CR2008165676001DT Honorable Michael D. Jones, Judge REVIEW GRANTED; RELIEF DENIED William G. Montgomery, Maricopa County Attorney By Adam Susser Natalee Segal Phoenix Attorneys for Respondent Phoenix Attorney for Petitioner K E L L Y, Judge. ¶1 Petitioner Adonis Lewis seeks review of the trial court s order denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb a trial court s ruling on a petition for post-conviction relief absent a clear abuse of discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Lewis has not sustained his burden of establishing such abuse here. ¶2 After a jury trial, Lewis was convicted of robbery and the trial court sentenced him to an enhanced, presumptive, ten-year prison term. His conviction and sentence were affirmed on appeal. State v. Lewis, No. 1 CA-CR 09-0294 (memorandum decision filed Jan. 19, 2010). Lewis thereafter initiated a post-conviction relief proceeding, arguing in his petition (1) the trial court had improperly encouraged the jurors to look at the court s website, (2) the prosecutor had improperly commented on Lewis s failure to testify at trial, (3) the probation surcharge he had been ordered to pay was illegal, and (4) trial counsel had been ineffective in failing to make objections in relation to the first two claims. The court summarily denied relief. ¶3 On review, Lewis has abandoned his other claims, see Ariz. R. Crim. P. 32.9(c)(1), and argues only that the trial court abused its discretion in concluding that the prosecutor s comments at trial had not improperly referenced Lewis s failure to testify and that, because [t]here were no impermissible comments made about the defendant s decision not to testify, there were no grounds for post conviction relief. But, Lewis s claim that the prosecutor had improperly commented on his failure to testify could have been raised on appeal, see State v. Fuller, 143 Ariz. 571, 575, 694 P.2d 1185, 1189 (1985), and is precluded, see Ariz. R. Crim. P. 32.2(a)(3). And Lewis has not argued on review that appellate counsel was ineffective in failing to raise the claim. See Ariz. R. Crim. P. 32.9(c)(1). Thus, we cannot say the court abused its discretion in summarily denying relief on Lewis s petition. Cf. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 2 1219 (1984) (appellate court is obliged to affirm trial court s ruling if result was legally correct for any reason). Therefore, although we grant the petition for review, relief is denied. /s/ Virginia C. Kelly VIRGINIA C. KELLY, Judge CONCURRING: /s/ Garye L. Vásquez GARYE L. Và SQUEZ, Presiding Judge /s/ Philip G. Espinosa PHILIP G. ESPINOSA, Judge 3
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