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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     FOX JOSEPH SALERNO, Petitioner.

                         No. 1 CA-CR 14-0082 PRPC
                             1 CA-CR 14-0306 PRPC
                               (Consolidated)
                              FILED 1-12-2016



           Appeal from the Superior Court in Maricopa County
                          No. CR2001-006753
               The Honorable Arthur T. Anderson, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Fox Joseph Salerno, Florence
Petitioner
                            STATE v. SALERNO
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which Judge
Lawrence F. Winthrop and Judge Samuel A. Thumma joined.


T H O M P S O N, Judge:

¶1           Petitioner Fox Joseph Salerno petitions this court for review
from the summary dismissal of his seventh and eighth post-conviction
relief proceedings. We have considered the consolidated petitions for
review and, for the reasons stated, grant review and deny relief.

¶2            A jury convicted Salerno of fraudulent schemes and artifices,
two counts of trafficking in stolen property and two counts of burglary in
the third degree. The trial court sentenced Salerno to an aggregate term of
15.75 years’ imprisonment and ordered that he serve these sentences
consecutively to his prison sentence in an unrelated matter. We affirmed
Salerno’s convictions and sentences on direct appeal. Salerno now seeks
review of the summary dismissal of his seventh and eighth successive post-
conviction relief proceedings. We have jurisdiction pursuant to Arizona
Rule of Criminal Procedure 32.9(c) and Arizona Revised Statute (A.R.S.)
section 13-4239(C) (2010).

I.     The Seventh Post-Conviction Relief Proceeding

¶3             Salerno properly presents one issue in his petition for review
of the dismissal of the seventh post-conviction relief proceeding. Salerno
argues he has newly discovered evidence that the State’s main investigator
and the primary witness against him, Detective Mitchell, had a niece who
was an “executive” who worked for the corporate victim. Salerno argues
this constituted a conflict of interest that the detective and the State should
have disclosed. The newly discovered evidence is the 2013 obituary of the
purported niece.

¶4            We deny relief. Salerno provided no evidence to the trial
court to support his claim; he merely made the allegation. It is only on
review that he provides a copy of an obituary from a newspaper. We will
not consider matters a defendant does not first present 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).


                                       2
                            STATE v. SALERNO
                            Decision of the Court

We deny relief even if we consider the obituary because the obituary does
nothing more than announce the death of a woman with the last name
“Mitchell” who, at some unidentified time, worked for four different
entities, one of whom appears related to the corporate victim in this case.
In no way does it suggest the decedent was in any way related to the
detective in this case.

¶5            While the petition for review in the seventh proceeding
arguably presents additional issues, Salerno did not raise those issues in the
petition for post-conviction relief he filed below. A petition for review may
not present issues not first presented to the trial court. Id.

II.    The Eighth Post-Conviction Relief Proceeding

¶6             In his petition for review of the dismissal of the eighth post-
conviction relief proceeding, Salerno argues he has newly discovered
evidence of ineffective assistance of his trial counsel. Salerno argues his
trial counsel never informed him of a plea offer the State made in November
2000 that would have allowed Salerno to plead guilty to a single count of
theft and receive probation. Salerno claims he only recently learned of the
plea offer after an attorney representing him in a civil matter discovered the
offer in the prosecutor’s file.

¶7             We deny relief because Salerno failed to present a colorable
claim. First, there is nothing in the letter from the civil attorney to Salerno
to suggest the attorney found a plea offer or any other document related to
this case in her review of any file. Second, there is nothing to indicate the
letter that extended the plea offer is related to this case rather than one of
Salerno’s other criminal matters. The letter does not identify a cause
number and the appearance of the letter suggests identifying information
that may have appeared in the subject line under the case name may have
been removed and/or obfuscated. Further, the letter states that the
proposed plea form is attached. That plea form would have identified a
cause number and other details which might have established a connection
to the instant case, but Salerno did not include a copy of the proposed plea.
Finally, we note the letter that extended the plea offer is dated November
30, 2000, explains the offer expires on February 23 and indicates the state
has already provided disclosure to defense counsel. The grand jury did not
indict Salerno in the instant case until May 3, 2001, more than five months
after the date of the letter. Therefore, Salerno has failed to establish that the




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                           STATE v. SALERNO
                           Decision of the Court

letter and the offer referenced within are related to the instant case rather
than one of Salerno’s other criminal matters.1

¶8            While Salerno’s petition for review in the eighth proceeding
arguably presents additional issues, Salerno did not raise those issues in the
petition for post-conviction relief he filed below. Again, a petition for
review may not present issues not first presented to the trial court. Id.

III.   Conclusion

¶9            We grant review and deny relief.




                                    :ama




1 While these are not the express grounds upon which the trial court
dismissed the petition, we may affirm a result on any basis supported by
the record. State v. Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 809 (1987).

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