                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                      STATE of ARIZONA, Respondent,

                                        v.

                  GILBERT LOUIS AYALA, III, Petitioner.

                         No. 1 CA-CR 13-0067 PRPC
                              FILED 09-18-2014


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2010-110993-001
                   The Honorable David B. Gass, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Lisa Marie Martin
Counsel for Respondent

Gilbert Louis Ayala, III, Buckeye
Petitioner



                       MEMORANDUM DECISION

Chief Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Donn Kessler joined.
                            STATE v. AYALA
                           Decision of the Court

J O H N S E N, Chief Judge:

¶1           Petitioner Gilbert Louis Ayala, III petitions this court for
review from the dismissal of his petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
and deny relief.

¶2            A jury convicted Ayala of second-degree burglary and the
superior court sentenced him to the presumptive term of 11.25 years’
imprisonment. We affirmed his conviction and sentence on direct appeal.
State v. Ayala, 1 CA-CR 10-0905, 2011 WL 5866261, at *1, ¶ 1 (Ariz. App.
Nov. 22, 2011) (mem. decision). Ayala filed a pro per petition for post-
conviction relief after his counsel found no colorable claims. The superior
court summarily dismissed the petition and Ayala now seeks review. We
have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).

¶3            Ayala argues the superior court erred when it refused to
allow him to call the prosecutor as a witness at trial, that the prosecutor
engaged in misconduct and the evidence was insufficient to support his
conviction because of conflicts between witnesses’ trial testimony and their
pretrial statements. We already have determined on direct appeal that the
evidence was sufficient to sustain Ayala’s conviction. Ayala, 1 CA-CR 10-
0905, 2011 WL 5866261, at *2, ¶ 7. Ayala could have raised the other issues
on direct appeal. Any claim a defendant raised or could have raised on
direct appeal is precluded. Ariz. R. Crim. P. 32.2(a). None of the exceptions
under Rule 32.2(b) applies. While Ayala argues he was "dumbfounded" by
our decision affirming his conviction, he could have filed a petition for
review with the supreme court if he wished to challenge it. See Ariz. R.
Crim. P. 31.19(a).

¶4             Ayala also argues his trial, appellate and post-conviction
relief counsel were ineffective. He argues his trial counsel was ineffective
when counsel failed to seek a jury instruction regarding criminal trespass
as a lesser-included offense of burglary. Our supreme court held long ago
that criminal trespass is not necessarily a lesser-included offense of
burglary. State v. Malloy, 131 Ariz. 125, 130-31, 639 P.2d 315, 320-21 (1981).
Ayala argues his appellate counsel was ineffective for filing a brief in
accordance with Anders v. California, 386 U.S. 738, 744 (1967), and State v.
Leon, 104 Ariz. 297, 299, 451 P.2d 878, 880 (1969), and advising this court
there were no arguable grounds for reversal. Ayala does not identify any
specific issues counsel should have raised on appeal, however, and, after
reviewing the entire record, this court found no reversible error. He has,
therefore, failed to present a colorable claim of ineffective assistance of


                                      2
                             STATE v. AYALA
                            Decision of the Court

appellate counsel. Ayala next argues his post-conviction relief counsel was
ineffective for filing a notice that counsel could find no colorable claims for
relief. Ineffective assistance of post-conviction relief counsel is not a
cognizable claim under Rule 32 unless a defendant makes the claim against
counsel who provided representation in an "of-right" petition for post-
conviction relief. State v. Krum, 183 Ariz. 288, 292, 903 P.2d 596, 600 (1995).
This is not a petition for post-conviction relief "of-right" because Ayala was
convicted after a jury trial. See Ariz. R. Crim. P. 32.1.

¶5             Finally, Ayala argues his appellate counsel was ineffective
when he failed to include unidentified supplemental issues Ayala provided
to counsel to raise on appeal. We deny relief on this issue because Ayala
did not raise it in the petition for post-conviction relief he filed below. A
petition for review may not present issues not first presented to the superior
court. State v. Bortz, 169 Ariz. 575, 577, ¶ 8, 821 P.2d 236, 238 (App. 1991);
Ariz. R. Crim. P. 32.9(c)(1)(ii).

¶6            For the foregoing reasons, we grant review and deny relief.




                                 :gsh




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