STATE v. COUCH

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NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA, Respondent, v. DANNY RAY COUCH, Petitioner. No. 1 CA-CR 13-0836 PRPC FILED 6-9-2015 Petition for Review from the Superior Court in Mohave County No. S8015CR200900945 The Honorable Derek C. Carlisle, Judge Pro Tem REVIEW GRANTED; RELIEF DENIED COUNSEL Mohave County Attorney’s Office, Kingman By Matthew J. Smith Counsel for Respondent Danny Ray Couch, Florence Petitioner STATE v. COUCH Decision of the Court MEMORANDUM DECISION Judge Margaret H. Downie, Judge Kenton D. Jones, and Judge Jon W. Thompson delivered the following decision of the Court. PER CURIAM: ¶1 Danny Ray Couch petitions for review from the superior court’s dismissal of his petition for post-conviction relief. We grant review but deny relief. ¶2 Couch pleaded guilty to molestation of a child and was sentenced to the presumptive term of seventeen years’ imprisonment. Couch seeks review of the summary dismissal of his fourth successive petition for post-conviction relief. We have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c). ¶3 The petition for review properly presents one claim: Couch contends trial counsel was ineffective by failing to present mitigating evidence at sentencing. Specifically, Couch argues his attorney should have presented mental health records that would have shown he suffered physical and mental abuse as a child. However, Couch raised this same issue in his second and third post-conviction relief proceedings. Any claim a defendant raised in an earlier post-conviction relief proceeding is precluded. Ariz. R. Crim. P. 32.2(a). None of the exceptions under Rule 32.2(b) apply. ¶4 Although the petition for review presents additional issues, Couch did not raise these issues in the petition for post-conviction relief filed in the superior court. A petition for review may not include issues not 2 STATE v. COUCH Decision of the Court first presented to the trial court. See Ariz. R. Crim. P. 32.9(c)(1)(ii); State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991); State v. Wagstaff, 161 Ariz. 66, 71, 775 P.2d 1130, 1135 (App. 1988); State v. Ramirez, 126 Ariz. 464, 467, 616 P.2d 924, 927 (App. 1980). We therefore grant review but deny relief. : ama 3

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