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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                MICHAEL DAVID CHAMBERS, Petitioner.

                         No. 1 CA-CR 15-0015 PRPC
                             FILED 2-21-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2011-007992-001
       The Honorable Carolyn K. Passamonte, Judge Pro Tempore

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Susan L. Luder
Counsel for Respondent

Michael David Chambers, Phoenix
Petitioner Pro Se



                       MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge James P. Beene joined.
                           STATE v. CHAMBERS
                            Decision of the Court

D O W N I E, Judge:

¶1             Michael David Chambers petitions for review from the
superior court’s summary dismissal of his first petition for post-conviction
relief. For the following reasons, we grant review but deny relief.

¶2           A jury found Chambers guilty of failure to register change of
address as a sex offender. He was sentenced to 4.5 years’ imprisonment,
and this Court subsequently affirmed his conviction and sentence on direct
appeal.

¶3            Chambers argues the superior court erred by: (1) admitting
admissions he made to investigators without Miranda warnings; (2)
admitting perjured testimony; (3) incorrectly instructing the jury; and (4)
permitting jurors to possess cell phones during deliberations. Chambers
also argues the evidence was insufficient to establish his guilt.1 We deny
relief on these issues because Chambers could have raised them on direct
appeal. Any claim a defendant could have raised on direct appeal is
precluded. See Ariz. R. Crim. P. 32.2(a). None of the exceptions set forth in
Rule 32.2(b) apply here.

¶4             Chambers also contends his trial counsel was ineffective by
failing to move for a new trial pursuant to Rule 24.1(c)(3). Defense counsel
instead filed a motion for new trial based on Rule 24.1(c)(5), which provides
that the court may grant a new trial for any reason not otherwise identified
in Rule 24.1(c) that resulted in the denial of a fair and impartial trial. The
motion for new trial asserted that: jurors coerced, intimidated,
misinformed, belittled, and pressured juror number 3 to return a guilty
verdict; two jurors used cell phones to send texts or emails while in the jury
room; and some jurors considered the underlying sexual offense as
evidence of Chambers’ guilt, notwithstanding a limiting instruction.
Rather than relying on Rule 24.1(c)(3), which permits a new trial based on
juror misconduct, the motion cited the more general provisions of Rule
24.1(c)(5). Chambers argues this constituted ineffective assistance of
counsel.

¶5           Rule 24.1(c)(3) permits a new trial based on six specified types
of juror misconduct. None of the juror-based allegations set forth in the
motion for new trial fall within the six identified categories. Under these
circumstances, the defense attorney’s reliance on Rule 24.1(c)(5) did not


1      Chambers raised additional issues in the superior court that he does
not present for review.


                                      2
                           STATE v. CHAMBERS
                            Decision of the Court

constitute ineffective assistance of counsel. Furthermore, the superior court
did not deny the motion for new trial because it cited the incorrect
subsection of Rule 24.1. The court instead denied the motion on the merits,
concluding, in pertinent part:

       The Court finds Defendant’s motion, and the imbedded
       transcript [of defense counsel’s post-trial interview of juror
       no. 3] focus entirely on issues of alleged juror misconduct.
       The allegation of coercion or intimidation and the allegation
       of improper use of cell phones both delve into the
       deliberations of jurors. Jurors’ deliberative processes are
       outside of the scope of the Court’s scrutiny under Rule
       24.1(c)(3). That paragraph of the rule describes the only
       grounds under which the Court may examine the conduct of
       jurors. Defendant may not use the broad language of Rule
       24.1(c)(5) to reach issues of deliberative process which were
       excluded under paragraph (c)(3).

The court went on to discuss the substance of the motion, making clear its
denial was based on the substantive merits and not a technical failure to cite
the proper subsection of Rule 24.1.

                              CONCLUSION

¶6            For the reasons stated, we grant review but deny relief.




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




                                        3
