STATE OF ARIZONA v. COREY VAUGHN MORRIS (pdf)

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IN THE ARIZONA COURT OF APPEALS DIVISION TWO THE STATE OF ARIZONA, Respondent, v. COREY VAUGHN MORRIS, Petitioner. No. 2 CA-CR 2021-0124-PR Filed May 18, 2022 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 NOT FOR PUBLICATION See Ariz.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. 31.19(e). Petition for Review from the Superior Court in Pima County Nos. CR20154024001 and CR20154312001 The Honorable Janet C. Bostwick, Judge REVIEW GRANTED; RELIEF DENIED Corey Vaughn Morris, Florence In Propria Persona STATE v. MORRIS Decision of the Court MEMORANDUM DECISION Presiding Judge Eckerstrom authored the decision of the Court, in which Chief Judge Vásquez and Judge Espinosa concurred. E C K E R S T R O M, Presiding Judge: ¶1 Corey Morris seeks review of the trial court’s ruling summarily dismissing his petition for post-conviction relief filed pursuant to Rule 33, Ariz. R. Crim. P.1 We will not disturb that ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Morris has shown no such abuse here. ¶2 Pursuant to a plea agreement in two different matters, Morris was convicted in May 2017 of attempted sexual assault, second-degree burglary, and two counts of voyeurism, in exchange for the dismissal of fourteen other counts.2 Pursuant to the terms of the plea agreement, Morris admitted that the voyeurism offenses constituted historical prior felony convictions. The trial court sentenced him to consecutive, aggravated and maximum prison terms totaling twenty-nine years for the assault and burglary offenses, to be followed by a presumptive 1.5-year term and Our supreme court amended the post-conviction relief rules, effective January 1, 2020. Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019). “Because it is neither infeasible nor works an injustice here, we cite to and apply the current version of the rules.” State v. Mendoza, 249 Ariz. 180, n.1 (App. 2020) (“amendments apply to all cases pending on the effective date unless a court determines that ‘applying the rule or amendment would be infeasible or work an injustice’” (quoting Ariz. Sup. Ct. Order R-19-0012)). 1 2 In its ruling, the trial court provided a detailed summary of the offenses, correctly pointing out that Morris had noted in his Rule 33 petition that the facts in the presentence report were consistent with the discovery and investigation of the case. 2 STATE v. MORRIS Decision of the Court lifetime probation for the voyeurism counts. 3 aggravating and mitigating circumstances. The court also found ¶3 Morris then sought post-conviction relief, asserting that the trial court had imposed excessive sentences that were arbitrary and capricious, and maintaining that the court had erroneously considered certain mitigating evidence as aggravating factors. He also argued that his attorney at sentencing had been ineffective in failing to “seek funds” to obtain a neuropsychological evaluation 4 and to present “[n]umerous” mitigating factors at sentencing. In January 2020, the court summarily dismissed Morris’s petition for post-conviction relief, concluding the requested relief was not warranted and noting that “[t]he record does not demonstrate ineffective assistance of counsel or an unconstitutionally excessive, arbitrary or capricious sentence.” 5 This petition for review and supplemental petition for review followed in December 2021 and April 2022. ¶4 On review, Morris argues the trial court erred in summarily dismissing his petition, reasserting the multiple arguments he raised in his 3 Apparently, while on release when these charges were pending, Morris committed additional offenses, for which he was sentenced after his sentencing in the underlying matters. 4 According to Morris, that evaluation, subsequently obtained by Rule 33 counsel, revealed several additional mitigating factors. 5In February 2021, Morris filed an “omnibus motion,” informing the trial court that his post-conviction relief attorney, Paul Mattern, had passed away, and requesting the status of his post-conviction proceeding, which as previously noted, the court had dismissed in January 2020. The court appointed counsel to inform and advise Morris and to review the post-conviction proceedings. The court subsequently granted counsel’s requests for extensions to permit Morris to file a pro se petition for review. To the extent Morris asserts on review that he was prejudiced because his Rule 33 proceeding was permitted to proceed “posthumously” after counsel’s death, we note that Morris has not presented any argument explaining how he was prejudiced in this regard, particularly in light of the court’s appointment of counsel to assist him once Morris notified the court of Mattern’s passing. Because Morris does not develop this claim further, we do not consider it. Cf. State v. Carver, 160 Ariz. 167, 175 (1989) (“Failure to argue a claim usually constitutes abandonment and waiver of that claim.”). 3 STATE v. MORRIS Decision of the Court petition below, in addition to raising several new arguments. 6 He also maintains, incorrectly, that this court is required to review his sentences for fundamental error. See Roseberry, 237 Ariz. 507, ¶ 7. We infer Morris is requesting, as he did below, that we remand this matter for resentencing. ¶5 The trial court here clearly identified the numerous claims Morris had raised and resolved them correctly in a thorough, well-reasoned ruling, which we adopt. See State v. Whipple, 177 Ariz. 272, 274 (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”). We additionally note that the Rule 33 judge, the same judge who presided over Morris’s change-of-plea and sentencing proceedings, concluded multiple times that even after considering Morris’s arguments and the neuropsychological report prepared at the request of Rule 33 counsel, the outcome at sentencing would not have been different. ¶6 Accordingly, we grant review but deny relief. 6To the extent Morris asserts new claims for the first time on review, we do not consider them. See Ariz. R. Crim. P. 33.16(c)(2)(B) (appellate court reviews issues presented to trial court); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (appellate court will not address arguments asserted for first time in petition for review). By way of example, those claims include, but are not limited to the following: he was entitled to a twelve-person jury; there was a different, more favorable plea agreement that he purportedly signed before the one now before us; an inadequate factual basis was presented to support his guilty pleas, “notwithstanding the allocution given”; he should not have been found guilty of attempted sexual assault; and, the trial court should have ordered sua sponte an examination to determine his competency to stand trial, pursuant to Rule 11.2, Ariz. R. Crim. P. 4

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