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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

         WILLIAM HAYWARD WITHERSPOON, III, Petitioner.

                         No. 1 CA-CR 15-0853 PRPC
                               FILED 8-17-2017



    Petition for Review from the Superior Court in Maricopa County
                         No. CR2012-138292-001
              The Honorable Brian Kaiser, Judge Pro Tempore

                  REVIEW GRANTED; RELIEF DENIED



                                   COUNSEL

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

William Hayward Witherspoon, III, Eloy
Petitioner
                         STATE v. WITHERSPOON
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kenton D. Jones and Chief Judge Samuel A. Thumma
joined.

D O W N I E, Judge:

¶1           William Hayward Witherspoon III petitions for review from
the dismissal of his petition for post-conviction relief filed pursuant to
Arizona Rule of Criminal Procedure (“Rule”) 32. For the following reasons,
we grant review but deny relief.

¶2            Witherspoon pleaded guilty to two counts of burglary in the
first degree. The superior court sentenced him to consecutive 10.5-year
prison terms. Witherspoon filed a timely notice of post-conviction relief.
Appointed counsel was unable to discern a colorable claim and did not file
a petition. Witherspoon did not timely file a pro se petition, and the superior
court dismissed the Rule 32 proceeding.

¶3             Almost nine months later, Witherspoon filed a “Withdrawal
of a Plea,” challenging the “long[] and harsh[] sentence.” The superior
court treated the filing as a notice for post-conviction relief and summarily
dismissed it. Witherspoon then filed an untimely combined notice of, and
petition for, post-conviction relief, asserting the untimeliness was through
no fault of his own, and the untimeliness was excusable due to a significant
change in the law that would likely overturn his conviction or sentence.
Witherspoon also asserted that: ineffective assistance of trial counsel led to
his consecutive prison terms; Rule 32 counsel was ineffective; and he was
improperly denied a Donald 1 hearing in connection with an earlier, more
favorable, plea offer. Concluding Witherspoon had failed to state a
cognizable claim for relief under Rule 32, the superior court dismissed the
notice/petition. This timely petition for review followed.

¶4           Witherspoon contends trial counsel was ineffective because
he was subjected to two consecutive 10.5-year terms of imprisonment, and
Rule 32 counsel was ineffective for “miss[ing] [the] substantial IAC claim.”
Absent an abuse of discretion or error of law, this Court will not disturb the
superior court’s ruling on a petition for post-conviction relief. State v.


1      State v. Donald, 198 Ariz. 406 (App. 2000).


                                      2
                          STATE v. WITHERSPOON
                            Decision of the Court

Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). To state a colorable claim of
ineffective assistance of counsel, a defendant must demonstrate that
counsel’s performance fell below objectively reasonable standards and that
the deficient performance prejudiced the defendant.              Strickland v.
Washington, 466 U.S. 668, 687 (1984); State v. Nash, 143 Ariz. 392, 397 (1985).

¶5             Witherspoon has not demonstrated an abuse of discretion or
error of law. First, his ineffective assistance claims are precluded. See State
v. Bennett, 213 Ariz. 562, 566, ¶ 14 (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.’” (citation omitted)). Second, his
claims fail on the substantive merits. The court properly imposed
consecutive sentences because the burglaries were committed on different
dates and involved different victims. See Ariz. Rev. Stat. § 13-711(A)
(requiring consecutive sentences when imposing multiple prison terms
unless court “expressly directs otherwise” and sets forth its reasoning on
the record).

¶6              Witherspoon contends Martinez v. Ryan, 566 U.S. 1 (2012),
permits him to raise an untimely ineffective assistance of counsel claim. But
Witherspoon did not present this argument in the superior court in his
petition for post-conviction relief and may not assert it for the first time in
this Court. See Rule 32(c)(1)(ii); State v. Ramirez, 126 Ariz. 464, 468 (App.
1980). Furthermore, Witherspoon’s reliance on Martinez is misplaced.
Martinez held that, “[w]here, under state law, claims of ineffective
assistance of trial counsel must be raised in an initial-review collateral
proceeding, a procedural default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial if, in the initial-
review collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.” 566 U.S. at 17. This simply means that
Witherspoon can pursue relief in federal court predicated on ineffective
assistance of trial counsel if he can first show either that he had no counsel
in his first post-conviction relief proceeding or that counsel in his first post-
conviction relief proceeding was ineffective. Martinez does not require state
courts to consider untimely claims of ineffective assistance of counsel
asserted in post-conviction proceedings.




                                        3
               STATE v. WITHERSPOON
                 Decision of the Court

                     CONCLUSION

¶7   For the foregoing reasons, we grant review but deny relief.




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




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