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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 KEITH MICHAEL HAIRSTON, Petitioner.

                         No. 1 CA-CR 15-0718 PRPC
                              FILED 10-26-2017


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 0000-161528
               The Honorable Margaret R. Mahoney, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Keith Michael Hairston, Florence
Petitioner



                       MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined.
                            STATE v. HAIRSTON
                            Decision of the Court

C R U Z, Judge:

¶1             Keith Michael Hairston petitions this Court for review of the
superior court’s order denying relief in this post-conviction proceeding.
“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 (App. 2007). Because Hairston has not sustained his burden of
establishing such abuse here, we grant review but deny relief.

¶2            A jury found Hairston guilty on fourteen counts of armed
robbery. Hairston admitted six prior felony convictions, and the superior
court found the State had proved its allegation that Hairston committed the
crimes while on probation for a federal felony offense. The court sentenced
Hairston to nine consecutive life sentences on the individual incidents, to
concurrent life sentences on the counts arising from the same incident, and
awarded presentence incarceration credit on all sentences. This Court
affirmed the convictions and sentences on direct appeal. State v. Hairston, 1
CA-CR 89-0959 (Ariz. App. Dec. 19, 1989) (mem. decision).

¶3            Ten years later, Hairston filed his first petition for post-
conviction relief (“PCR”).1 He successfully argued his sentences had been
illegally enhanced because his federal felony would not be a felony if
committed in Arizona. The superior court resentenced Hairston to
consecutive eighteen-year terms of imprisonment on the individual
incidents, and to concurrent eighteen-year terms of imprisonment on the
counts arising from the same incident.             It awarded presentence
incarceration credit for 4635 days on the first count.

¶4           Hairston then timely commenced PCR proceedings. Hairston
argued he was entitled to presentence incarceration credit on all sentences.
The superior court found the claim was precluded because it could have
been raised on direct appeal, and found that even if not precluded, Hairston
was not entitled to “double credit for presentence incarceration in
consecutive sentences,” citing State v. McClure, 189 Ariz. 55, 57 (App. 1997).

¶5             Hairston then moved for a rehearing. Hairston argued that at
the first sentencing, he had been awarded presentence incarceration credit


1      This post-conviction relief proceeding was timely because the
current time limits of ninety and thirty days imposed by Arizona Rule of
Criminal Procedure (“Rule”) 32.4 are not applicable to a defendant
“sentenced prior to September 30, 1992, who is filing his first petition for
post-conviction relief.” Moreno v. Gonzalez, 192 Ariz. 131, 135, ¶ 22 (1998).


                                       2
                            STATE v. HAIRSTON
                            Decision of the Court

on all sentences imposed. Even though this credit resulted in illegally-
lenient sentences, the State did not challenge the credit and the sentences
were affirmed on direct appeal. He argued jeopardy had attached to the
original sentences, and therefore the failure to award that same presentence
incarceration credit on the new sentences violated double jeopardy.
Hairston conceded he should have filed a notice of appeal and raised this
issue on appeal, but he argued preclusion should not apply because PCR
counsel had failed to recognize the issue, and had failed to explain “that it
is an issue that must be raised on appeal.”

¶6              The superior court granted the motion for rehearing, vacated
its earlier order that had dismissed the PCR, and permitted Hairston to “file
an amended Rule 32 petition on the issues of presentence incarceration
credits in consecutive sentences and ineffective assistance of counsel at the
resentencing.” Hairston then filed a supplemental petition and reasserted
the presentence incarceration credit claim. He also argued PCR counsel had
been ineffective for failing to raise the issue at resentencing or to advise him
of the issue and of the requirement to raise the issue on direct appeal.
Finally, he argued preclusion should not apply because he had attempted
to file a notice of appeal.

¶7            The State responded that the presentence incarceration credit
claim was without merit and therefore PCR counsel had not been
ineffective. The State pointed out that double jeopardy does not apply to
non-capital sentences and that the law specifically prohibited the “double
credit windfall” Hairston sought. The superior court again found the issue
precluded because it could have been raised on direct appeal. The court
also found Hairston’s claim was without merit. It further found that
Hairston was not entitled to relief on the presentence incarceration credit
claim because the original award of presentence credit on all counts was
illegal and because double jeopardy does not apply to non-capital
sentences. Finally, the court denied relief on the ineffective assistance of
PCR counsel claim. Hairston sought review by this Court, but review was
denied. State v. Hairston, 1 CA-CR 00-0950 PR (Ariz. App. July 6, 2001)
(decision order).

¶8            Hairston then filed PCR proceedings in 2003 and again in
2011. Both were summarily dismissed, and Hairston did not seek review
of either proceeding.

¶9          In March of 2015, Hairston filed the present PCR proceeding.
He claimed he was entitled to a delayed appeal because the failure to timely
appeal from his resentencing in 1999 was not his fault. He asserted his


                                       3
                            STATE v. HAIRSTON
                            Decision of the Court

counsel and the superior court had failed to advise him of his appellate
rights, but he also claimed he had timely mailed his notice of appeal to the
clerk of the superior court and attached proof of delivery dated June 4, 1999.
Hairston did not set forth “the reasons for not raising the claim in the
previous petition or in a timely manner” as Rule 32.2(b) requires. The
superior court summarily dismissed the petition, and Hairston now seeks
review.

¶10           On review Hairston argues neither his first PCR counsel nor
the superior court advised him of his right to appeal, but he then argues he
timely mailed his notice of appeal to the clerk of the superior court and
provided proof of this mailing to the superior court.2 In either event, the
record belies Hairston’s claims, and he fails to establish any abuse of
discretion by the superior court.

¶11           The superior court’s resentencing minute entry reflects
Hairston was advised of his right to appeal. Hairston also signed a written
“Notice of Rights of Review after Conviction and Procedure.” His
signature appears directly below the following statement: “I have received
a copy of this notice explaining my right to appeal, my right to seek post-
conviction relief and the procedures I must follow to exercise these rights.”

¶12            That Hairston was aware of his right to appeal is established
by Hairston’s own claim that he timely mailed his notice of appeal to the
superior court. Upon examination of this claim, however, we find that the
record does not support it. A review of Hairston’s proof of delivery dated
June 4, 1999, and the superior court filings on June 7, 1999, reflect that
Hairston did not file a notice of appeal. Rather, he filed a request for
preparation of post-conviction relief record, notice of post-conviction relief,
notice of rights of review after conviction, and notice of filing notice of post-
conviction relief.

¶13          Even if Hairston was unaware of his right to appeal, or even
if he had mailed a notice of appeal to the superior court, his claim was
properly subject to summary dismissal. Waiting sixteen years to raise the
claim and then failing to explain why he did not raise it in an earlier PCR
proceeding is fatal. See Ariz. R. Crim. P. 32.2(b).



2      Hairston also raises for the first time on review a claim of ineffective
assistance of counsel in relation to plea negotiations. This Court will not
consider issues raised for the first time in the petition for review. Ariz. R.
Crim. P. 32.9(c)(1)(ii); State v. Bortz, 169 Ariz. 575, 577 (App. 1991).


                                       4
                  STATE v. HAIRSTON
                  Decision of the Court

¶14   Accordingly, we grant review but deny relief.




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




                               5
