STATE OF ARIZONA v. JULIAN ADRIAN WYATT
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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 NOV 15 2012 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. JULIAN ADRIAN WYATT, Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2012-0302-PR DEPARTMENT B MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20063253 Honorable Howard Hantman, Judge REVIEW GRANTED; RELIEF DENIED Julian Wyatt Buckeye In Propria Persona E S P I N O S A, Judge. ¶1 Following a jury trial, petitioner Julian Wyatt was convicted of first-degree murder and sentenced to life in prison without the possibility of release for twenty-five years. We affirmed his conviction and sentence on appeal. State v. Wyatt, No. 2 CA-CR 2008-0274 (memorandum decision filed July 28, 2009). We also denied relief on Wyatt s petition for review from the trial court s denial of his first petition for postconviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P., in which he claimed, inter alia, that trial counsel was ineffective by failing to call certain defense witnesses. State v. Wyatt, No. 2 CA-CR 2011-0288-PR, ¶ 2 (memorandum decision filed Feb. 8, 2012). Wyatt subsequently filed a second petition for post-conviction relief, which the court denied without conducting an evidentiary hearing. 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). We find no such abuse here. ¶2 On review, Wyatt asserts, as he did in his petition below, that newly discovered evidence showing the fraudulent billing practices of trial counsel s investigator resulted in counsel s failure to call a particular defense witness, rendering trial counsel ineffective.1 To establish a claim of ineffective assistance of counsel, a defendant must show both that counsel s performance fell below prevailing professional norms and also that there is a reasonable probability the outcome of the case would have been different but for the deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985). ¶3 In its ruling denying post-conviction relief, the trial court first summarized the procedural history of the case. The court then correctly concluded that Wyatt had not established why he should be permitted to file a successive post-conviction petition, and noted that the only new claim in his petition, the claim now before us on review, was 1 To the extent Wyatt intends to raise a claim based on actual innocence for the first time in his petition for review, we do not consider it. See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980) (appellate court does not consider issues not first presented to trial court). 2 precluded and without merit in any event. Based on the record before us, we cannot say the court abused its discretion in dismissing Wyatt s petition for post-conviction relief. The court did so in a detailed ruling that clearly identified the nature of Wyatt s arguments and correctly ruled on them in a manner that will allow any future court to understand their resolution. We therefore approve and adopt the court s ruling and see no need to restate it here. State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). ¶4 Therefore, although the petition for review is granted, relief is denied. /s/ Philip G. Espinosa PHILIP G. ESPINOSA, Judge CONCURRING: /s/ Garye L. Vásquez GARYE L. Và SQUEZ, Presiding Judge /s/ Virginia C. Kelly VIRGINIA C. KELLY, Judge 3
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