State v. Watson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

WINSTON TYA WATSON, Petitioner.

No. 1 CA-CR 21-0163 PRPC
FILED 12-28-2021

Petition for Review from the Superior Court in Coconino County
No. CR 2019-00718
The Honorable Ted S. Reed, Judge

REVIEW GRANTED AND RELIEF DENIED

COUNSEL

Coconino County Attorney’s Office, Flagstaff
By William Ring
Counsel for Respondent

Coconino County Legal Defender’s Office, Flagstaff
By Joseph A. Carver
Counsel for Petitioner

STATE v. WATSON
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the court, in
which Judge Michael J. Brown and Judge Paul J. McMurdie joined.

H O W E, Judge:

¶1 Winston Tya Watson petitions this court for review from the
dismissal of his petition for post-conviction relief filed pursuant to Arizona
Rule of Criminal Procedure 33.1. We have considered the petition for
review and, for the reasons stated, grant review and deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 In 2019, Watson entered two plea agreements, pleading guilty
to one count each of second-degree murder and felony shoplifting in CR
2018-00013 and one count of aggravated assault in CR 2019-00718. As set
forth in the plea agreements, Watson agreed to serve an aggregate term of
36.5 years’ imprisonment in the 2018 case and a consecutive aggravated
term of 7.5 years’ imprisonment in the 2019 matter. The superior court
sentenced Watson in accordance with the stipulated terms.

¶3 In 2020, Watson sought post-conviction relief (“PCR”) only in
the 2019 case, and the superior court appointed PCR counsel. In his PCR
petition, Watson asserted that he received ineffective assistance of counsel
(“IAC”) because trial counsel advised him to enter a plea agreement in the
2019 case that required him to serve “the longest possible sentence for a
Class 5 felony” and therefore “conferred no benefit on him.”

¶4 In response, the State provided a supporting affidavit from
trial counsel, who avowed in part: (1) she represented Watson in both
matters, and the plea negotiations in the 2018 case “were conducted in
conjunction with plea negotiations” in the 2019 case; (2) the State agreed to
allow him to “plea to Second Degree Murder so long as he served a
stipulated 44-year prison sentence” in total; (3) avoiding a
first-degree-murder conviction in the 2018 case was “contingent upon [him]
stipulating to plead guilty to Count 1-Aggravated Assault with two
historical prior felony convictions” in the later case; and (4) the plea
agreements “resulted in [him] avoiding a life sentence.” The State argued
that despite Watson’s contrary assertion, he had “received a significant

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STATE v. WATSON
Decision of the Court

benefit because of defense counsel’s representation” based on the global
resolution of all his pending charges.

¶5 The superior court summarily dismissed Watson’s PCR
proceeding, finding that the petition “failed to raise a colorable claim
pursuant to” Rule 33 and that the claims “fail[ed] to present a material issue
of fact or law which would entitle [Watson] to relief.” This petition for
review followed.

DISCUSSION

¶6 We will not disturb the court’s ruling unless Watson
establishes an abuse of discretion. See State v. Poblete, 227 Ariz. 537, 538 ¶ 1
(App. 2011). He has not done so here. A review petition must include
“reasons why the appellate court should grant the petition.” Ariz. R. Crim.
P. 33.16(c)(2)(D). “A party’s failure to raise any issue that could be raised in
the petition for review . . . constitutes a waiver of appellate review of that
issue.” Ariz. R. Crim. P. 33.16(c)(4); see also State v. Carver, 160 Ariz. 167, 175
(1989) (failing to argue a claim abandons and waives that claim).

¶7 In his petition for review, Watson acknowledges that trial
counsel’s affidavit sufficiently addressed the IAC complaints that he
presented to the superior court, further explaining that “PCR counsel [first]
learned of the legal connection between the two agreements” from the
affidavit. Having so conceded, Watson neither reasserts his IAC claim nor
otherwise argues that the superior court erred in dismissing his PCR
proceeding. Therefore, given the absence of any challenge to trial counsel’s
effectiveness, we deem the argument waived.

¶8 Furthermore, we decline PCR counsel’s alternative request
“to review the record for possible error” under Anders v. California, 388 U.S.
924 (1967), then grant Watson 45 days “to file any pro se supplemental
brief.” As a threshold matter, because Watson did not raise this issue in the
superior court, we need not consider it. See Ariz. R. Crim. P. 33.16(c)(2)(B)
(limiting review to issues decided by the superior court); State v. Wagstaff, 161 Ariz. 66, 71 (App. 1988) (reviewing court does not consider even
meritorious issues unless they were presented to the superior court). In any
event, Arizona law does not require an Anders review in PCR proceedings.
State v. Chavez, 243 Ariz. 313, 317–19 ¶¶ 12, 17–18 (App. 2017); see also State
v. Banda, 232 Ariz. 582, 585 ¶ 12 (App. 2013) (pleading defendants waive
“all non-jurisdictional defects and defenses, including [IAC]
claims[,] . . . except those that relate to the validity of a plea”).

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STATE v. WATSON
Decision of the Court

CONCLUSION

¶9 Accordingly, although we grant review, we deny relief.

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

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