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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                          CALVIN JAMES, Petitioner.

                          No. 1 CA-CR 15-0346 PRPC
                               FILED 3-7-2017


     Petition for Review from the Superior Court in Maricopa County
                            No. CR1997-010797
                    The Honorable Dean M. Fink, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

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

Calvin James, Jonesville, VA
Petitioner



                        MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Paul J. McMurdie joined.
                             STATE v. JAMES
                            Decision of the Court

J O N E S, Judge:

¶1           Calvin James petitions for review of the dismissal of his
successive and untimely petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
and deny relief.

¶2            In September of 1997, James was charged with sale of narcotic
drugs, possession of narcotic drugs for sale, and possession of drug
paraphernalia. He ultimately pleaded guilty to possession of narcotic
drugs for sale. At the change of plea hearing, James denied selling any
drugs, but admitted that he had possessed cocaine with the intent to
transfer the drug. The superior court accepted his plea and sentenced James
to an exceptionally mitigated three-year term of imprisonment.

¶3             James timely filed his pro se notice of post-conviction relief of-
right. See Ariz. R. Crim. P. 32.1. The superior court appointed counsel. See
Ariz. R. Crim. P. 32.4(c)(2). After reviewing the file, including the
transcripts of the change of plea and sentencing proceedings, counsel filed
a notice that she had been unable to find any colorable claim. Id. The court
granted James additional time to file a pro se petition, id., but he did not do
so, and the proceeding was dismissed. James did not seek review of the
dismissal order.

¶4             Over fifteen years later, James moved to “withdraw/vacate
guilty plea.” He alleged that his counsel had been ineffective, there was an
insufficient factual basis for the plea, and, because the superior court had
inadequately advised him of the nature of the charge and of the
consequences of his plea, his plea had not been made knowingly and
voluntarily. James did not explain the delay in asserting these claims.

¶5            The superior court treated the motion as a petition for post-
conviction relief. The court then found that the claims were precluded,
noting “Defendant fail[ed] to state a claim for which relief can be granted
in an untimely Rule 32 proceeding,” and dismissed the petition. See Ariz.
R. Crim. P. 32.2(a).

¶6            On review, James’ arguments are somewhat difficult to
follow. He first argues that his claims should not be precluded because, but
for counsel’s “deficient failure to consult with the defendant about a Post-
Conviction Appeal, the defendant would have timely appealed.” But the
record reflects that James did exercise his appellate right by timely filing his
notice of post-conviction relief of-right.



                                       2
                             STATE v. JAMES
                            Decision of the Court

¶7             James next argues post-conviction relief counsel was
ineffective because she never consulted with him about possible issues or
claims. He also argues for the first time that the waivers contained in his
plea agreement, particularly the waiver of the right to a direct appeal, are
invalid because they create a conflict of interest. These issues were not
presented to the superior court, and may not now be presented in the
petition for review. See Ariz. R. Crim. P. 32.9(c)(1)(ii) (limiting the petition
for review to “issues which were decided by the trial court and which the
defendant wishes to present to the appellate court for review”); see also State
v. Vera, 235 Ariz. 571, 573-74, ¶ 8 (App. 2014) (citing State v. Ramirez, 126
Ariz. 464, 468 (App. 1980).

¶8             James also reasserts his claims of ineffective assistance of trial
counsel, insufficient factual basis, and an involuntary plea. These claims
are precluded because they all arise under Rule 32.1(a) (permitting a person
to seek relief on the grounds that “[t]he conviction or the sentence was in
violation of the Constitution of the United States or of the State of
Arizona”), and could and should have been raised in James’ petition for
post-conviction relief of-right filed over fifteen years ago, see Ariz. R. Crim.
P. 32.2(a) (“A defendant shall be precluded from relief under this rule based
upon any ground: . . . [t]hat has been waived at trial, on appeal, or in any
previous collateral proceeding.”), 32.4(a) (“Any notice not timely filed may
only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h).”).

¶9            Accordingly, we grant review and deny relief.




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




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