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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  ROBERT STANLEY ORTLOFF, Petitioner.

                          No. 1 CA-CR 13-0662 PRPC
                            FILED 6-25-2015


     Petition for Review from the Superior Court in Maricopa County
                         No. CR 2003-032707-001
                 The Honorable Warren J. Granville, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

Maricopa County Attorney’s Office, Phoenix
By E. Catherine Leisch
Counsel for Respondent

Robert Stanley Ortloff, Fort Worth, TX
Petitioner



                        MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Kenton D. Jones joined.
                            STATE v. ORTLOFF
                            Decision of the Court

T H O M P S O N, Judge:

¶1           Robert Stanley Ortloff petitions for review of the trial court’s
summary dismissal of his petition for post-conviction relief filed pursuant
to Arizona Rule of Criminal Procedure. We have considered his petition
for review and, for the reasons stated, grant review but deny relief.

¶2             In 2008, Ortloff was convicted by a jury on charges of first-
degree murder, burglary in the first degree, and arson of an occupied
structure stemming from the murder of his business partner in 1984. The
trial court sentenced Ortloff to life in prison with the possibility of release
after twenty-five years for the murder together with a concurrent seven-
year prison term for the burglary and a consecutive seven-year prison term
for arson. The trial court further ordered that the sentences be served
consecutive to a fifty-year prison term Ortloff was serving for federal
offenses related to the attempted murder of an Army soldier in 1986. This
court affirmed Ortloff’s convictions and sentences on direct appeal. State v.
Ortloff, 1 CA-CR 08-0508 (Ariz. App. Apr. 5, 2011) (mem. decision).

¶3             In December 2011, Ortloff filed a notice of post-conviction
relief, and appointed counsel gave notice that she found no claims to be
raised in a Rule 32 proceeding. Ortloff thereafter filed a pro se petition for
post-conviction relief alleging claims of prosecutorial misconduct,
ineffective assistance of trial and appellate counsel, and cumulative error.
The trial court summarily dismissed the petition, ruling that the claims of
prosecutorial misconduct and cumulative error were precluded and that
Ortloff failed to state a colorable claim of ineffective assistance of counsel.
We review the summary dismissal of a post-conviction relief proceeding for
abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17, 146 P.3d 63, 67
(2006).

¶4             We have reviewed the claims raised by Ortloff in his petition
for post-conviction relief and the trial court’s ruling and conclude the trial
court thoroughly addressed and correctly resolved the claims in a manner
“that will allow any court in the future to understand the resolution.” State
v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). No purpose
would be served by repeating the trial court’s ruling in its entirety, and we
therefore adopt it. See Id.

¶5            In addition to challenging the trial court’s rulings on his
claims of prosecutorial misconduct, ineffective assistance of counsel, and
cumulative error, Ortloff argues that the trial court abused its discretion by
failing to recognize the exception to preclusion for claims raised under


                                       2
                            STATE v. ORTLOFF
                            Decision of the Court

Rules 32.1(e) and 32.1(h). Although claims of newly discovered material
facts and actual innocence are not necessarily subject to preclusion
pursuant to Rule 32.2(a), Ortloff did not raise these claims in his petition for
post-conviction relief. Instead, they were raised for the first time in his
motion for rehearing and in a motion to amend petition filed after the trial
court had already ruled on his petition for post-conviction relief.

¶6              “The law is clear that a court will not entertain new matters
raised for the first time in a motion for rehearing.” State v. Bortz, 169 Ariz.
575, 577, 821 P.2d 236, 238 (App. 1991). Furthermore, nothing in Rule
32.6(d) ― or any other provision of Rule 32 ― permits a defendant to amend
his or her petition after it has been dismissed. See State v. Ramirez, 126 Ariz.
464, 468, 616 P.2d 924, 928 (App. 1980) (“Rule 32.6(d) requires that
amendments to pleadings be made prior to the trial court’s ruling
dismissing the petition or prior to the trial court’s order granting or denying
relief on the merits after a hearing on the petition pursuant to Rule
32.8(d).”). Because the claims of newly discovered material facts and actual
innocence were not properly placed before the trial court for consideration,
such claims “may not be included in a subsequently filed petition for review
by this court or subsequent pleadings.” Id.; see also Ariz. R. Crim. P.
32.9(c)(1)(ii) (petition for review must contain “issues which were decided
by the trial court and which the defendant wishes to present to the appellate
court for review”).

¶7            Ortloff additionally complains that the trial court did not rule
on his motion for rehearing or his motion to amend his petition. Where no
ruling is made on a motion, the motion is deemed denied by operation of
law. State v. Hill, 174 Ariz. 313, 323, 848 P.2d 1375, 1385 (1993). There was
no abuse of discretion in a denial of the motions as the attempt to insert new
claims into the proceeding was untimely. See Ramirez, 126 Ariz. at 468, 616
P.2d at 928.

¶8            For the foregoing reasons, although we grant review, we deny
relief.




                                    :ama



                                       3
