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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               HAROLD EUGENE MARKLAND, Petitioner.

                         No. 1 CA-CR 14-0331 PRPC
                             FILED 7-26-2016


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2006-006142-001
                  The Honorable Pamela S. Gates, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Harold Eugene Markland, Florence
Petitioner Pro Se



                       MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge Jon W. Thompson joined.
                           STATE v. MARKLAND
                            Decision of the Court

T H U M M A, Judge:

¶1             Petitioner Harold Eugene Markland seeks review of the
superior court’s order denying his petition for post-conviction relief, filed
pursuant to Arizona Rule of Criminal Procedure 32.1. Absent an abuse of
discretion or error of law, this court will not disturb a superior court’s ruling
on such a petition. State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19 (2012). Because
Markland has shown no error, this court grants review but denies relief.

¶2           A jury convicted Markland of aggravated assault and
attempted kidnapping. The superior court imposed concurrent prison
terms, the longest of which was 12 years. This court affirmed the
convictions and sentences on appeal. State v. Markland, 1 CA-CR 06-0978
(Ariz. App. Aug. 26, 2008) (mem. dec.).

¶3            In August 2007, Markland filed a petition for post-conviction
relief. At Markland’s request, this petition was dismissed without prejudice
in November 2007.

¶4             In April 2008, Markland filed a notice of post-conviction relief
and the superior court appointed counsel to represent him. In September
2008, appointed counsel filed a notice of completion of review, stating that
after review of the record, she was unable to find any issues to raise. This
proceeding was dismissed on April 3, 2009, after Markland failed to timely
file a pro se petition for post-conviction relief.

¶5             In May 2009, Markland filed a petition for writ of certiorari,
which the superior court treated as a notice for post-conviction relief and
found it timely because it was filed within 30 days of the issuance of the
mandate on his appeal. The court appointed counsel to represent Markland,
and the petition for post-conviction relief filed by counsel alleged
ineffective assistance of counsel. The court later summarily dismissed the
petition, ruling Markland failed to state a colorable claim for relief. This
court granted review of the order of dismissal, but denied relief. State v.
Markland, 1 CA-CR 12-0649 PRPC (Ariz. App. Nov. 19, 2013) (mem. dec.).

¶6            In December 2013, Markland filed a petition for post-
conviction relief alleging claims involving violation of various
constitutional rights and a claim of actual innocence. The superior court
found the petition untimely and successive and summarily dismissed the
petition, ruling the constitutional claims were precluded because they
could not be raised in an untimely and successive petition and that
Markland failed to state a colorable claim of actual innocence. After the



                                       2
                           STATE v. MARKLAND
                            Decision of the Court

superior court denied Markland’s motion for rehearing, he filed the
pending petition for review with this court.

¶7            Markland contends the superior court’s summary dismissal
was error, claiming he was denied a fair trial due to the jury reaching its
verdicts without all exhibits admitted at trial or, in the alternative, his rights
of confrontation and cross-examination were violated by the release of an
exhibit to the prosecutor before deliberations. This court reviews the
summary dismissal of a post-conviction relief proceeding for abuse of
discretion, State v. Bennett, 213 Ariz. 562, 566 ¶ 17 (2006), and may affirm
the superior court’s ruling “on any basis supported by the record,” State v.
Robinson, 153 Ariz. 191, 199 (1987).

¶8            Markland could have raised either of these two issues on
direct appeal or in his prior post-conviction relief proceedings. Any claim a
defendant could have raised on direct appeal or a prior post-conviction
relief proceeding is precluded. See Ariz. R. Crim. P. 32.2(a). None of the
exceptions to preclusion available under Rule 32.2(b) apply and Markland
does not contend otherwise. Because Markland is precluded from raising
these claims in a successive post-conviction relief proceeding, the superior
court did not err in summarily dismissing the petition. See Ariz. R. Crim. P.
32.2(c) (providing “any court on review of the record may determine and
hold that an issue is precluded regardless of whether the state raises
preclusion”).

¶9           Because Markland has shown no error, this court grants
review but denies relief.




                                    :AA




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