STATE OF ARIZONA v. ANTHONY TERRELL THOMPSON
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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 FEB 15 2011 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. ANTHONY TERRELL THOMPSON, Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2010-0336-PR DEPARTMENT A MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20043616 Honorable Michael J. Cruikshank, Judge REVIEW GRANTED; RELIEF DENIED Barbara LaWall, Pima County Attorney By Jacob R. Lines Anthony Terrell Thompson Tucson Attorneys for Respondent Florence In Propria Persona H O W A R D, Chief Judge. ¶1 Pursuant to a plea agreement, petitioner Anthony Thompson was convicted in 2006 of one count of sexual conduct with a minor under the age of fifteen, a class two felony and a dangerous crime against children. The trial court sentenced him to an enhanced, presumptive, twenty-year prison term. In 2007, we denied relief on Thompson s petition for review of the court s denial of his first petition for postconviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., in which he challenged his guilty plea and asserted trial counsel had been ineffective. State v. Thompson, No. 2 CACR 2007-0106-PR (memorandum decision filed Aug. 31, 2007). In 2009, we denied relief on Thompson s petition for review of the court s dismissal of his second petition for post-conviction relief, in which he asserted the court improperly had engage[d] in plea negotiations with him and had misled him regarding the length of his sentence. State v. Thompson, No. 2 CA-CR 2009-0136-PR, ¶ 4 (memorandum decision filed Aug. 31, 2009). Thompson subsequently filed his third petition for post-conviction relief, once again raising claims of ineffective assistance of trial counsel. This petition for review follows the court s summary dismissal of Thompson s most recent petition and his motion for rehearing/reconsideration. 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 abuse here. ¶2 On review, Thompson argues the trial court abused its discretion by denying relief on his claims of ineffective assistance of counsel, which the court found precluded, and by denying his motion for rehearing/reconsideration, which the court found untimely and, in any event, without merit. See Ariz. R. Crim. P. 32.2(a), 32.9(a). Based on the record before us, we cannot say the court abused its discretion in ruling as it did. The court denied relief in two thorough minute entry orders that clearly identified Thompson s arguments and correctly ruled on them in a manner that will allow any 2 future court to understand its resolution. We therefore approve and adopt the court s rulings and see no need to reiterate them here. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). ¶3 Thompson also argues that, at the very least, he was entitled to an evidentiary hearing. A defendant is entitled to a hearing only if he raises a colorable claim for relief, which is one that, if taken as true, likely would have changed the outcome of the case. State v. Watton, 164 Ariz. 323, 328, 793 P.2d 80, 85 (1990). Based on the trial court s proper determination that Thompson s claim was precluded and, in any event, did not present a colorable claim for relief, the court correctly dismissed his petition without conducting an evidentiary hearing. In addition, Thompson asks us to consider claims he raised for the first time in his petition for review and in his Unsworn Declaration and Case Summary, a document he apparently signed on October 20, 2010 but never filed in the trial court. It appears Thompson is raising, for the first time on review, claims of ineffective assistance of Rule 32 counsel, and is asking us to consider additional claims raised in a pleading he appears to have executed well after the trial court ruled in August and September 2010. Because these claims were not raised properly in the trial court, we decline to consider them. See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980) (appellate court will not consider on review any issue on which trial court had not first had opportunity to rule); see also Ariz. R. Crim. P. 32.9(c) (aggrieved party may petition appellate court for review of the actions of the trial court ). 3 ¶4 Because the trial court did not abuse its discretion, we grant the petition for review but deny relief. /s/ Joseph W. Howard JOSEPH W. HOWARD, Chief Judge CONCURRING: /s/ J. William Brammer, Jr. J. WILLIAM BRAMMER, JR., Presiding Judge /s/ Philip G. Espinosa PHILIP G. ESPINOSA, Judge 4
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