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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     CORY EVERETT LEWIS, Petitioner.

                         No. 1 CA-CR 17-0787 PRPC
                              FILED 7-3-2018


    Petition for Review from the Superior Court in Maricopa County
            Nos. CR2007-030289-001 and CR2015-109629-001
                  The Honorable Danielle J. Viola, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Gerald R. Grant
Counsel for Respondent

Cory Everett Lewis, Florence
Petitioner



                       MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.
                             STATE v. LEWIS
                            Decision of the Court

C A T T A N I, Judge:

¶1            Cory Everett Lewis petitions for review from the superior
court’s summary dismissal of his petition for post-conviction relief. For
reasons that follow, we grant review but deny relief.

¶2            In 2016, Lewis pleaded guilty to sexual abuse, attempt to
commit sexual conduct with a minor, and attempt to commit molestation
of a child. Lewis also stipulated to two aggravating factors: emotional harm
to the victim and a prior felony conviction in the last 10 years. (Lewis
acknowledged a 2007 child abuse conviction for which he was sentenced to
a 10-year term of probation.)

¶3            The superior court sentenced Lewis to the presumptive term
of 10 years’ imprisonment on the attempted sexual conduct with a minor
charge, and to concurrent terms of lifetime probation on the remaining
counts, to begin upon discharge from prison. The court also revoked
Lewis’s probation stemming from the 2007 conviction and sentenced him
to one year in prison, to be served consecutively to the sentence imposed in
the instant case.

¶4            Lewis filed a pro se petition for post-conviction relief, claiming
ineffective assistance of plea counsel and asserting that his plea was
involuntary. The superior court summarily dismissed his petition, and
Lewis filed a timely petition for review.

¶5              On review, Lewis re-urges the claims raised in his petition for
post-conviction relief. He also raises several new issues (claims relating to
a preliminary hearing, the lack of a bail hearing, his Rule 32 counsel, and
exculpatory evidence), which we do not address because they were not first
presented to the superior court. See Ariz. R. Crim. P. 32.9(c)(4)(B)(ii)
(requiring that a petition for review “must contain . . . a statement of issues
the trial court decided that the defendant is presenting for appellate review”)
(emphasis added); State v. Bortz, 169 Ariz. 575, 578 (App. 1991); see also State
v. Swoopes, 216 Ariz. 390, 403, ¶ 41 (App. 2007) (noting that there is no
review for fundamental error in a post-conviction relief proceeding).

¶6            Summary dismissal of a petition for post-conviction relief is
appropriate if the court determines that the petition fails to state a colorable
claim for relief, i.e., the petition fails to allege facts that, if true, would
probably have changed the outcome of the criminal proceedings. Ariz. R.
Crim. P. 32.6(d)(1); State v. Amaral, 239 Ariz. 217, 220, ¶ 11 (2016). We




                                       2
                             STATE v. LEWIS
                            Decision of the Court

review the superior court’s ruling on a petition for post-conviction relief for
an abuse of discretion. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012).

¶7            Lewis argues that his counsel was ineffective because (1)
counsel did not challenge the constitutionality of A.R.S. §§ 13-1404 and 13-
1410, and (2) counsel failed to advise him on the wording of the statute—
A.R.S. § 13-1405—under which he was indicted. To prevail on a claim of
ineffective assistance of counsel, Lewis must show that counsel’s
performance fell below objectively reasonable standards and that the
deficient performance prejudiced him. See Strickland v. Washington, 466 U.S.
668, 687–88 (1984); State v. Nash, 143 Ariz. 392, 397 (1985). If a defendant
fails to demonstrate either prong of the Strickland test, the superior court
need not consider the other prong. State v. Salazar, 146 Ariz. 540, 541 (1985).

¶8            Lewis argues that his counsel should have challenged the
constitutionality of A.R.S. §§ 13-1404 (sexual abuse) and 13-1410 (child
molestation), based on the reasoning in a federal district court case decided
after Lewis pleaded guilty. See May v. Ryan, 245 F. Supp. 3d 1145 (D. Ariz.
2017) (holding that Arizona’s child molestation statute violates a
defendant’s federal due process right). But the Arizona Supreme Court has
expressly rejected the constitutional arguments relied on in May, see State v.
Holle, 240 Ariz. 300, 308–09, ¶¶ 38–44 (2016), cert. denied, 137 S. Ct. 1446
(2017), and we are bound by the decisions of that court. See State v. Cooney,
233 Ariz. 335, 341, ¶ 18 (App. 2013). Thus, Lewis’s reliance on May is
unavailing.

¶9            Lewis also asserts that his counsel should have advised him
that to be convicted of sexual conduct with a minor under A.R.S. § 13-1405,
the State would have to show that he engaged in “sexual intercourse”
(which he argues does not include masturbatory contact) with the victim.
But the criminal code defines “sexual intercourse” to include masturbatory
contact, see A.R.S. § 13-1401(4), and Lewis does not further explain how
counsel’s explanation would have affected his decision to plead guilty to
attempted sexual conduct with a minor. Accordingly, Lewis fails to state a
colorable claim of ineffective assistance of counsel.

¶10           Lewis also argues that he was coerced into accepting the plea
because he was told that he would not receive a fair trial. But he offers only
his own conclusory statements that his plea was involuntary. And those
statements are inconsistent with the record developed during the change of
plea hearing, during which Lewis affirmed that his plea was voluntary and
that he agreed with the factual basis for the charges, as stated by his counsel.




                                       3
                            STATE v. LEWIS
                           Decision of the Court

Moreover, at sentencing, when prompted by the court, he re-affirmed that
the facts underpinning his guilty plea were accurate.

¶11            Lewis further asserts that he was suffering from debilitating
physical and emotional issues that rendered his plea involuntary. But when
questioned by the superior court during the plea proceedings, he expressly
stated that he understood the proceedings, and he has not established a
basis from which to conclude that he was in such physical pain or turmoil
that his plea was involuntary. Accordingly, the superior court did not
abuse its discretion by summarily rejecting this claim. See Gutierrez, 229
Ariz. at 577, ¶ 19.

¶12          Accordingly, we grant review but deny relief.




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




                                        4
