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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    TYEREL DARNEL LUKE, Petitioner.

                         No. 1 CA-CR 15-0776 PRPC
                              FILED 6-6-2017


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 1995-008176
                  The Honorable Andrew G. Klein, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Tyerel Darnel Luke, Florence
Petitioner



                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge James P. Beene joined.
                              STATE v. LUKE
                            Decision of the Court

W I N T H R O P, Judge:

¶1             Tyerel Darnel Luke petitions this court for review of the
dismissal of his petition for post-conviction relief, filed pursuant to Arizona
Rule of Criminal Procedure (“Rule”) 32. We have considered the petition
and, for the reasons stated, grant review but deny relief.

¶2            On direct appeal, this court vacated Luke’s convictions and
sentences and remanded to the superior court. Luke was retried in 2000,
and a jury found him guilty of sexual assault and kidnapping, both class
two felonies and dangerous crimes against children in the first degree. The
court imposed consecutive sentences totaling thirty-seven years and
ordered lifetime community supervision upon release. This court affirmed
Luke’s convictions and sentences, and subsequently denied review of Rule
32 proceedings Luke initiated in 2006.

¶3            Luke filed a notice of, and petition for, post-conviction relief
on August 10, 2015. He raised a claim of newly discovered evidence, see
Ariz. R. Crim. P. 32.1(e), which consisted of mental health evaluation
reports from 2011 and 2013. Luke also argued his sentence was unlawful,
and he stated his trial counsel was ineffective. The superior court dismissed
the notice and petition, finding Luke’s Rule 32.1(e) claim failed because the
reports attached to the petition did not exist before his 2000 retrial, and,
considering the reports referred to mental health issues that did exist before
2000, those issues were discoverable before the second trial.1 The court
found the remaining claims were untimely and precluded. See Ariz. R.
Crim. P. 32.1(a), (c), 32.2. This timely petition for review followed.

¶4             Without citing authority or the record as required, Luke
claims he was entitled to a determination as to his mental health at the time
of the offenses, and he contends his sentences should run concurrently.
Luke makes no argument explaining how the superior court abused its
discretion in dismissing the untimely and successive Rule 32 proceedings.
See Ariz. R. Crim. P. 32.9(c)(1)(iv) (requiring that the petition contain “[t]he
reasons why the petition should be granted”). For these reasons alone,
relief is inappropriate. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830,
838 (1995) (recognizing that an insufficient argument waives a claim on
review), abrogation on other grounds recognized by McKinney v. Ryan, 813 F.3d
798, 815-16 (9th Cir. 2015); State v. Carriger, 143 Ariz. 142, 146, 692 P.2d 991,
995 (1984) (“Petitioners must strictly comply with Rule 32 or be denied

1     Before he was retried, Luke underwent competency evaluations
pursuant to Rule 11 and was deemed competent.


                                       2
                               STATE v. LUKE
                             Decision of the Court

relief.” (citation omitted)); State v. French, 198 Ariz. 119, 122, ¶ 9, 7 P.3d 128,
131 (App. 2000) (finding that a petition for review incorporating trial court
filings “utterly fails to comply with Rule 32.9,” and therefore rejecting
summarily the claims raised), disapproved on other grounds by Stewart v.
Smith, 202 Ariz. 446, 450, ¶ 10, 46 P.3d 1067, 1071 (2002).2

¶5            “We will not disturb a trial court’s ruling on a petition for
post-conviction relief absent a clear abuse of discretion.” State v. Swoopes,
216 Ariz. 390, 393, ¶ 4, 166 P.3d 945, 948 (App. 2007) (citation omitted). We
are obliged to uphold the trial court if the result is legally correct for any
reason. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984); State v.
Cantu, 116 Ariz. 356, 358, 569 P.2d 298, 300 (App. 1977).

¶6              Regarding Luke’s Rule 32.1(e) claim, the reports Luke
attached to his petition pertained to competency evaluations prepared for
criminal matters commenced in 2009 and 2012. The reports also indicate
the competency evaluations involved reviews of Luke’s mental health
records before his retrial. Because the reports were created after Luke’s
retrial in this case, they were not newly discovered material facts for Rule
32 purposes. And the records mentioned in the reports suggest that any
issue regarding Luke’s pretrial mental health could have been discovered
if diligently pursued. The court did not err in dismissing the Rule 32.1(e)
claim. See State v. Bilke, 162 Ariz. 51, 52-53, 781 P.2d 28, 29-30 (1989) (noting
the requirements for properly asserting a claim for post-conviction relief
based on newly discovered evidence include a showing that (1) the
evidence must appear on its face to have existed at the time of trial but be
discovered after trial, and (2) the petition must allege facts from which the
court could conclude the defendant was diligent in discovering the facts
and bringing them to the court’s attention).

¶7            As for the remaining Rule 32 claims, the superior court is
authorized to summarily dismiss a Rule 32 proceeding based on preclusion.
See Ariz. R. Crim. P. 32.2(a), 32.6(c). A claim is precluded when it “has been
waived at trial, on appeal, or in any previous collateral proceeding.” Ariz.
R. Crim. P. 32.2(a)(3). As a general rule, any claim that could have been (or
was) raised on direct appeal or in an earlier Rule 32 proceeding is
precluded. Ariz. R. Crim. P. 32.2(a); see State v. Bennett, 213 Ariz. 562, 566,

2      Luke asserts that, as a self-represented petitioner, he is entitled to be
held to a lesser standard than a lawyer. Arizona law, however, is to the
contrary. See State v. Cornell, 179 Ariz. 314, 331, 878 P.2d 1352, 1369 (1994)
(“[A] defendant acting in propria persona is subject to the same rules as an
attorney.” (citations omitted)).


                                        3
                               STATE v. LUKE
                             Decision of the Court

¶ 14, 146 P.3d 63, 67 (2006) (“[W]hen ineffective assistance of counsel claims
are raised, or could have been raised, in a Rule 32 post-conviction relief
proceeding, subsequent claims of ineffective assistance will be deemed
waived and precluded.” (internal quotation marks, emphasis, and citation
omitted)). A petitioner like Luke, who files a successive notice of post-
conviction relief, may only assert claims that fall within Rule 32.1(d), (e), (f),
(g), or (h), and must state in the notice “meritorious reasons . . .
substantiating the claim and indicating why the claim was not stated in the
previous petition or in a timely manner.” Ariz. R. Crim. P. 32.2(b).

¶8             Because Luke’s sentencing claims were pursuant to Rule 32.1
(a) (unconstitutional conviction or sentence) and (c) (illegal sentence), they
were properly precluded. See Ariz. R. Crim. P. 32.2(a); see also State v. Peek,
219 Ariz. 182, 183, ¶ 4, 195 P.3d 641, 642 (2008) (recognizing that a claim of
an illegal sentence must be timely presented); State v. Cazares, 205 Ariz. 425,
426, ¶ 4, 72 P.3d 355, 356 (App. 2003) (stating that claims of an illegal
sentence are covered by Rule 32.1(c), not Rule 32.1(d), (e), (f), (g), or (h)).
Luke’s ineffective assistance of counsel claim was also properly precluded
because it was untimely raised in a successive Rule 32 proceeding.3 See
Ariz. R. Crim. P. 32.1, 32.2; Bennett, 213 Ariz. at 566, ¶ 14, 146 P.3d at 67.

¶9           Luke fails to establish the superior court’s abuse of discretion.
Accordingly, although we grant review, we deny relief.




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




3      Even if the claim of ineffective assistance of counsel should not have
been precluded, Luke states he did not seek relief on the ground of
ineffective assistance of counsel. Thus, he has abandoned that claim.


                                          4
