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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   JAMES ALBERT ASHPOLE, Petitioner.

                         No. 1 CA-CR 16-0103 PRPC
                              FILED 10-17-2017


    Petition for Review from the Superior Court in Maricopa County
                           Nos. CR1998-002941
                                CR1998-012870
            The Honorable Justin Beresky, Judge Pro Tempore

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

James Albert Ashpole, San Luis
Petitioner
                           STATE v. ASHPOLE
                           Decision of the Court



                      MEMORANDUM DECISION


Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Michael J. Brown joined.


C AM P B E L L, Judge:

¶1             James Albert Ashpole petitions this court for review from the
dismissal of his petition for post-conviction relief. We have considered the
petition for review and grant review but deny relief.

¶2             On March 19, 1999, Ashpole was convicted of multiple counts
of fraudulent schemes and artifices and sale of unregistered securities, one
count of attempted fraudulent schemes and artifices, one count of theft, and
one count of illegally conducting an enterprise. The superior court
sentenced him to concurrent sentences, for a total nine-year prison term,
with an additional seven years of probation following his release. The
superior court twice revoked and reinstated Ashpole’s probation, until it
finally revoked his probation and sentenced him to a 10-year prison term,
the subject of this petition.

¶3             The State alleged Ashpole had violated the terms of his
intensive probation by absconding, associating with felons, failing to pay
fines or fees and surcharges, and failing to abide by the special conditions
imposed on white-collar crime probationers. The probation department
recommended that Ashpole’s probation be revoked and that he be
sentenced to a term of imprisonment.

¶4            Ashpole admitted to violating his probation. The court then
entered an order of revocation and set the matter for disposition. At
disposition, the superior court found three aggravating circumstances:
multiple priors, pecuniary gain, and ongoing criminal activity while on
probation. Service to his country and his age were mitigating circumstances
considered by the court. Ashpole filed a motion to correct the sentence,
which was denied as argued. The superior court instructed his attorney to
brief the issue of the legality of the aggravated term pursuant to Blakely v.




                                     2
                             STATE v. ASHPOLE
                             Decision of the Court

Washington, 542 U.S. 296 (2004). Counsel filed a motion for resentencing and
after full briefing, the superior court denied the motion. 1

¶5              Ashpole immediately filed a notice of post-conviction relief.
He alleged that his claims were pursuant to Arizona Rule of Criminal
Procedure 32.1(d)-(h), by checking the boxes for each specific exception. He
did not provide documentation to support any of his claims. Ashpole
simply asserted his attorney told him that, if he admitted the probation
violation, the court would reinstate his probation. The court construed this
argument as an ineffective assistance of counsel claim. The State filed a
response. Ashpole filed a reply, detailing the underlying basis for the claims
for the first time. The superior court found that the petition for relief was
timely, but all issues raised were precluded, and if not precluded, were
without merit. The superior court dismissed the petition.

¶6              Ashpole filed a timely petition for review alleging ineffective
assistance of counsel, sentencing error, double jeopardy, and a Blakely issue.
Apart from the ineffective assistance of counsel claim regarding his
counsel’s advice, Ashpole did not raise the other claims in his petition for
relief. A petition for review may not present issues not first presented to the
superior court. See Ariz. R. Crim. P. 32.9(c)(1)(ii); State v. Bortz, 169 Ariz. 575,
577 (App. 1991).

¶7            Ashpole claims his attorney was ineffective because he
advised him to admit to a probation violation, telling him he would get his
probation reinstated. 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. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012).

¶8            Other than the mere allegation, Ashpole has failed to support
this claim with reference to any evidence. Ineffective assistance of counsel
must be a demonstrable reality rather than a matter of speculation. State v.
Meeker, 143 Ariz. 256, 264 (1984). The superior court did not abuse its
discretion in dismissing the claim.




1      Ashpole also filed a special action and this court declined
jurisdiction.


                                         3
                 STATE v. ASHPOLE
                 Decision of the Court

¶9   Accordingly, we grant review but deny relief.




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




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