State v. Rhea

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CLARENCE MICHAEL RHEA, Petitioner.

No. 1 CA-CR 18-0787 PRPC
FILED 7-16-2019

Petition for Review from the Superior Court in Maricopa County
Nos. CR2014-005417-001
CR2015-111925-001
The Honorable Sherry K. Stephens, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Andrea Kever
Counsel for Respondent

Clarence Michael Rhea, Florence
Petitioner
 STATE v. RHEA
Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.

C R U Z, Judge:

¶1 Clarence Rhea petitions this court for review from the denial
of his third petition for post-conviction relief (“PCR”) containing a claim
pursuant to Arizona Rule of Criminal Procedure 32.1. We have considered
the petition for review and, for the reasons stated, grant review but deny
relief.

¶2 Rhea pleaded guilty in two separate cases. The plea
agreements stipulated to prison sentences of 3.5 years in one case and 5
years as to the other. He was sentenced according to those stipulations. He
argues the prosecutor committed misconduct and his trial counsel and first
PCR counsel were ineffective for failing to challenge the misconduct. These
issues were also raised in Rhea’s first PCR which the superior court
dismissed. This court granted review from the dismissal of Rhea’s first PCR
but ultimately denied relief. In the second PCR, appointed counsel found
no colorable claims. The instant petition for review follows Rhea’s third
PCR and incorporates by reference the same ineffective assistance of
counsel claims. Because he does not support his claims with reasoning or
legal citations in his petition for review, we do not consider those claims.
Ariz. R. Crim. P. 32.9 (c)(4)(B)(iv). Rhea also appears to argue prosecutorial
misconduct in violation of his constitutional rights. More specifically, Rhea
argues the prosecution listed an incorrect sentencing range on his plea
agreements, and that he was intimidated and threatened into entering those
agreements. The record of the change of plea proceedings shows Rhea
denied being under any force or threat to admit his guilt. Additionally, he
was sentenced as per the stipulations in his plea agreements. Accordingly,
the superior court denied relief.

¶3 We will not disturb a superior court’s ruling on a petition for
post-conviction relief unless the court abused its discretion. State v.
Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). The petitioner has the burden to
show the court abused its discretion. See State v. Poblete, 227 Ariz. 537, 538,
¶ 1 (App. 2011). Here, we find no abuse of discretion.

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 STATE v. RHEA
Decision of the Court

¶4 Rhea further argues the prosecutor committed misconduct by
“fabricat[ing] the law” and submitting a “fraudulent contractual plea-
agreement”[sic]. He did not present these claims in his first PCR petition.
Because he could have raised these claims in that petition, they are now
waived. State v. Shrum, 220 Ariz. 115, 118, ¶ 12 (2009).

¶5 We grant review but deny relief.

AMY M. WOOD • Clerk of the Court
FILED: AA

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