STATE v. HARPER
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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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. DAVID JASON HARPER, Petitioner. No. 1 CA-CR 14-0681 PRPC FILED 1-31-2017 Petition for Review from the Superior Court in Maricopa County No. CR2009-148071-001 DT The Honorable Janet E. Barton, Judge REVIEW GRANTED; RELIEF DENIED COUNSEL Maricopa County Attorney’s Office, Phoenix By E. Catherine Leisch Counsel for Respondent David Jason Harper, Kingman Petitioner Pro Se MEMORANDUM DECISION Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Donn Kessler joined. STATE v. HARPER Decision of the Court H O W E, Judge: ¶1 David Jason Harper petitions this Court for review from the dismissal of his petition for post-conviction relief. We have considered the petition for review and for the reasons stated, grant review but deny relief. ¶2 After this Court affirmed Harper’s convictions and sentences in State v. Harper, 1 CA-CR 10-0923 (Ariz. App. Sept. 22, 2011) (mem. decision), Harper petitioned for post-conviction relief, alleging that his counsel provided ineffective assistance by failing to convey a favorable plea offer. The trial court held a hearing on the claim at which both Harper and his initial trial counsel testified. The testimony at the hearing conflicted. After the hearing, the court found trial counsel’s testimony that she fully conveyed the plea offer to Harper credible, and denied relief. ¶3 On review, Harper argues that the trial court should have found that his trial counsel failed to properly convey the plea offer to him. Credibility determinations in post-conviction proceedings rest solely with the trial court, State v. Fritz, 157 Ariz. 139, 141, 755 P.2d 444, 446 (App. 1988), and “it is for the trial court to resolve conflicting testimony . . . .” State v. Alvarado, 158 Ariz. 89, 92, 761 P.2d 163, 166 (App. 1988). Having resolved the conflicting testimony in favor of Harper’s trial counsel, the trial court correctly denied relief. ¶4 Harper also argues that his trial counsel did not properly advise him to accept the favorable plea offer. This issue was not raised in the petition for post-conviction relief filed in the trial court. A petition for review may not present issues not first presented to the trial court. Ariz. R. Crim. P. 32.9(c)(1)(ii); State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991). Thus, we do not consider Harper’s argument. See State v. White, 194 Ariz. 344, 354 ¶ 43, 982 P.2d 819, 829 (1999). ¶5 Harper further argues that his post-conviction relief counsel provided ineffective assistance. Nonpleading defendants like Harper, however, “have no constitutional right to counsel in post-conviction proceedings.” See State v. Escareno-Meraz, 232 Ariz. 586, 587 ¶ 4, 307 P.3d 1013, 1014 (App. 2013). Thus, his claim of ineffective assistance of post-conviction relief counsel is not a cognizable ground for relief in a post-conviction relief proceeding. 2 STATE v. HARPER Decision of the Court ¶6 For the foregoing reasons, we grant review but deny relief. AMY M. WOOD • Clerk of the Court FILED: AA 3
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