State v. Allen

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

DONALD MERWIN ALLEN, II, Petitioner.

No. 1 CA-CR 13-0670 PRPC
FILED 2-24-2015

Petition for Review from the Superior Court in Yavapai County
No. V1300CR201280170
The Honorable Michael R. Bluff, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Yavapai County Attorney’s Office, Camp Verde
By Patti Marie Wortman
Counsel for Respondent

Donald Merwin Allen, Tucson
Petitioner

MEMORANDUM DECISION

Presiding Judge John C. Gemmill delivered the decision of the Court, in
which Judge Kenton D. Jones and Judge Donn Kessler joined

G E M M I L L, Judge:
 STATE v. ALLEN
Decision of the Court

¶1 Petitioner Donald M. Allen II 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
and deny relief.

¶2 Allen pled guilty to two counts of child abuse and one count
each of aggravated driving under the influence (“DUI”) and endangerment.
The trial court sentenced him to three years’ imprisonment for one count of
child abuse and placed him on an aggregate term of ten years’ probation
for the remaining counts. The original sentencing minute entry failed to
specify individual terms of probation for the three counts and identified
only the aggregate term. Finally, the court also ordered Allen to serve four
months in jail for the second count of aggravated DUI.

¶3 Allen filed a timely “of-right” petition for post-conviction
relief. Allen asserted the wording of the trial court’s order regarding
probation imposed terms of ten years’ probation for both aggravated DUI
and endangerment, even though the plea agreement provided Allen could
receive no more than four years’ probation for each of those two counts. He
also argued the parties agreed he would serve his four-month sentence in
prison, not the county jail. Finally, Allen argued his trial counsel was
ineffective for failing to raise these issues at sentencing. The sole relief Allen
sought was for the court to impose no more than four years’ probation for
the counts of aggravated DUI and endangerment, and for the court to order
that he serve his four-month sentence in prison rather than the county jail.

¶4 The trial court agreed with Allen and held the sentencing
minute entry required clarification. The court in turn gave Allen all the
relief he sought. The court corrected the minute entry to provide for three
years’ probation for endangerment and four years’ probation for
aggravated DUI. The court ordered both of those terms of probation to run
concurrently with the ten-year period of probation for child abuse. The
court also corrected the minute entry to provide that Allen would serve his
four-month sentence for aggravated DUI in prison rather than the county
jail. Despite receiving all the relief he sought in his petition below, Allen
now seeks review of the trial court’s ruling. We have jurisdiction pursuant
to Arizona Rule of Criminal Procedure 32.9(c).

¶5 In his petition for review, Allen presents new claims he did
not present below. Allen argues nobody told him he could receive ten
years’ probation on any count and that he was told the longest term of
probation he could receive was four years. Allen argues his counsel was
ineffective when he failed to raise these issues at sentencing. For unknown

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 STATE v. ALLEN
Decision of the Court

reasons, Allen also continues to argue that he should be allowed to serve
his four-month sentence for aggravated DUI in prison.

¶6 We deny relief. Regarding the new claims, a petition for
review may not present issues not first presented to the trial court. State v.
Ramirez, 126 Ariz. 464, 467, 616 P.2d 924, 927 (App. 1980); State v. Wagstaff, 161 Ariz. 66, 71, 775 P.2d 1130, 1135 (App. 1988); State v. Bortz, 169 Ariz. 575,
577, 821 P.2d 236, 238 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii). Regarding
the four-month sentence, as noted above, the trial court has already
corrected this error.

¶7 We grant review and deny relief.

:ama

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