STATE OF ARIZONA v. PHILBERT SHABIE

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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 MAR 29 2013 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. PHILBERT SHABIE, Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2013-0035-PR DEPARTMENT B MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF NAVAJO COUNTY Cause No. S0900CR20050244 Honorable John Lamb, Judge REVIEW GRANTED; RELIEF DENIED Brad Carlyon, Navajo County Attorney By Galen H. Wilkes Philbert Shabie Holbrook Attorneys for Respondent Buckeye In Propria Persona E S P I N O S A, Judge. ¶1 Following a jury trial, petitioner Philbert Shabie was convicted of aggravated assault, attempted aggravated assault, and two counts of promoting prison contraband. The trial court found Shabie had prior felony convictions and sentenced him to concurrent prison terms, the longest of which were 15.75 years, to be served consecutively to the sentence he was already serving. This court affirmed his convictions and sentences on appeal. State v. Shabie, No. 1 CA-CR 07-0026 (memorandum decision filed Nov. 27, 2007). In 2007 and 2009, the court dismissed Shabie s first two petitions for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. In 2010, Shabie filed his third petition for post-conviction relief. This petition for review followed the court s summary dismissal of that petition. We will not disturb that ruling unless the court has abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We find no such abuse here. ¶2 On review, Shabie contends the trial court prematurely dismissed his petition, because it had done so before he had the opportunity to file a reply to the state s response to that petition. On December 29, 2010, before his reply was due, see Rule 32.6(b), Shabie filed a motion requesting additional time to reply to the state s response to his petition. Although the trial court s order dismissing Shabie s petition reflects that it had considered the petition, the state s response and subsequent pleadings, it does not appear the court ruled on his request before it dismissed his petition for postconviction relief as untimely on January 3, 2011. ¶3 In its ruling dismissing the petition as untimely, the trial court first provided a complete procedural history of the case, and then correctly concluded that Shabie had failed to show that he exercised due diligence in obtaining his medical and mental health records, which he argued constituted newly discovered evidence, thereby fail[ing] to satisfy requirements of Rule 32.1(e)(2) and State v. Bilke, 162 Ariz. 51, 52-53, 781 P.2d 28, 29-30 (1989)[,] for filing an untimely Rule 32 petition. Based on our review of the 2 record, we conclude the court properly rejected Shabie s claim of newly discovered evidence, the sole basis asserted for filing an untimely petition for post-conviction relief, and that it therefore correctly summarily dismissed his petition.1 See Ariz. R. Crim. P. 32.2(b) (if the specific exception [to preclusion] and meritorious reasons do not appear substantiating the claim and indicating why the claim was not stated in [a] previous petition or in a timely manner, the notice shall be summarily dismissed. ). Notably, the court alternatively dismissed all of Shabie s claims2 as precluded because he could have but did not raise them either on appeal or in one of his previous post-conviction petitions. See Ariz. R. Crim. P. 32.2(a). The court also correctly noted that, because Shabie was represented by counsel on appeal and in his first two post-conviction proceedings, he was not entitled to post-conviction relief on the grounds he was denied effective assistance of post-conviction relief counsel. 3 In a related argument, Shabie contends the trial court prematurely ¶4 dismissed his petition without having first ruled on his motion for change of judge. 1 Even had Shabie been permitted to file a reply to the state s response to his petition, he has not suggested how he would have argued successfully that his third petition was timely. 2 Those claims included ones of ineffective assistance of trial, appellate, and Rule 32 counsel; various due process violations; prosecutorial misconduct; sentencing error; and that the trial court should have granted his motion for stay and abeyance. 3 [T]he non-pleading defendant has no constitutional right to counsel or effective assistance in post-conviction proceedings ; although the non-pleading defendant has the right to effective representation on appeal, he has no valid, substantive claim under Rule 32 for ineffective assistance on a prior [post-conviction relief] petition. Osterkamp v. Browning, 226 Ariz. 485, ¶ 18, 250 P.3d 551, 556 (App. 2011) (alteration in Osterkamp), quoting State v. Krum, 183 Ariz. 288, 292 & n.5, 903 P.2d 596, 600 & n.5 (1995). 3 However, that motion, which was distinct from the petition for post-conviction relief, was not part of the post-conviction proceeding before the court and is not, therefore, properly before us on review. See Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review shall contain issues which were decided by the trial court in post-conviction proceeding). ¶5 Shabie further maintains he was entitled to a mental health examination pursuant to Rule 11, Ariz. R. Crim. P. Although it is not clear that this argument is separate from Shabie s claim of newly discovered evidence, addressed above, it nonetheless is precluded. Because Shabie argued in his first petition for post-conviction relief that the trial court had abuse[d] its discretion by not allowing [him] to be evaluated for mental issues pursuant to Rule 11, he is precluded from raising this claim again. See Ariz. R. Crim. P. 32.2(a)(2) (defendant precluded from post-conviction relief based on ground [f]inally adjudicated on the merits . . . in any previous collateral proceeding ). ¶6 Finally, although Shabie asserted in his petition below that trial and appellate counsel were ineffective and he is entitled to be resentenced under Blakely v. Washington, 542 U.S. 296 (2004), it does not appear that he challenged the trial court s dismissal of these claims in his petition for review. Rather, he asserts these claims solely in the reply to the state s response to the petition for review. Just as we do not address on review claims not raised properly in the defendant s petition for post-conviction relief, by analogy we do not address claims not raised in the petition for review, to which the state had no opportunity to respond. Cf. State v. Lopez, 223 Ariz. 238, ¶¶ 5-7, 221 P.3d 1052, 1053-54 (App. 2009) (declining to address issue first raised in reply). Moreover, because 4 the court correctly dismissed Shabie s petition as untimely, we need not address these claims in any event. ¶7 Because the trial court did not abuse its discretion in dismissing the petition for post-conviction relief, the petition for review is granted but relief is denied. /s/ Philip G. Espinosa PHILIP G. ESPINOSA, Judge CONCURRING: /s/ Garye L. VÃ¡squez GARYE L. VÃ SQUEZ, Presiding Judge /s/ J. William Brammer, Jr. J. WILLIAM BRAMMER, JR., Judge* *A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Order filed December 12, 2012. 5

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