STATE OF ARIZONA v. SEBASTIAN PENA
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IN THE ARIZONA COURT OF APPEALS DIVISION TWO THE STATE OF ARIZONA, Respondent, v. SEBASTIAN PENA, Petitioner. No. 2 CA-CR 2015-0271-PR Filed September 18, 2015 THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24. Petition for Review from the Superior Court in Maricopa County No. CR2010006224007DT The Honorable Janet E. Barton, Judge REVIEW GRANTED; RELIEF DENIED COUNSEL William G. Montgomery, Maricopa County Attorney By Robert E. Prather, Deputy County Attorney, Phoenix Counsel for Respondent Sebastian Pena, Tucson In Propria Persona STATE v. PENA Decision of the Court MEMORANDUM DECISION Judge Espinosa authored the decision of the Court, in which Chief Judge Eckerstrom and Presiding Judge Miller concurred. E S P I N O S A, Judge: ¶1 Sebastian Pena seeks review of the trial court’s order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Pena has not met his burden of demonstrating such abuse here. ¶2 Following a jury trial held in his absence, Pena was convicted of trafficking in stolen property. After he was returned to custody, the trial court sentenced him to an 11.25-year prison term. We affirmed his conviction and sentence on appeal. State v. Pena, No. 1 CA-CR 11-0247 (memorandum decision filed June 28, 2012). ¶3 Pena sought post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but found no “colorable claims for relief to raise in post-conviction relief proceedings.” Pena then filed a pro se petition arguing his trial counsel had been ineffective in failing to “recognize” that he was entitled to a twelve-person jury and by permitting him to be tried by only an eight-person jury. In his reply to the state’s response, Pena raised several new arguments, including that appellate counsel had been ineffective in failing to raise various issues, that giving him less than a thirty-year sentence “just to prevent a 12 person jury” constituted “judicial vindictiveness,” and that he had not been voluntarily absent at trial. The trial court summarily denied relief. It rejected Pena’s claim regarding jury size and declined to address the additional arguments Pena raised in his reply. This petition for review followed the court’s denial of Pena’s motion for rehearing. ¶4 On review, Pena first asserts the trial court was required to address the additional arguments raised in his reply pursuant to 2 STATE v. PENA Decision of the Court Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012). But a trial court is not required to address claims raised for the first time in a reply. See State v. Lopez, 223 Ariz. 238, ¶¶ 6-7, 221 P.3d 1052, 1054 (App. 2009). Nothing in Martinez alters this established rule. We therefore do not address Pena’s arguments related to those additional claims. Nor do we address his claim, raised for the first time on review, that Rule 32 counsel was ineffective. See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980); see also Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review should contain “issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review”). To the extent Pena reurges his claim that trial counsel was ineffective in failing to raise issues related to the size of the jury, we adopt the trial court’s thorough and correct minute entry rejecting that claim. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993) (when trial court has correctly ruled on issues raised “in a fashion that will allow any court in the future to understand the resolution[, n]o useful purpose would be served by this court rehashing the trial court’s correct ruling in a written decision”). ¶5 Although we grant review, relief is denied. 3
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