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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   KIMMIE DWAYNE BAKER, Petitioner.

                         No. 1 CA-CR 14-0853 PRPC
                              FILED 2-14-2017


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2012-005802-001 DT
           The Honorable Robert L. Gottsfield, Judge (Retired)

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Kimmie Dwayne Baker, Avondale
Petitioner
                            STATE v. BAKER
                           Decision of the Court



                      MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Margaret H. Downie joined.


B E E N E, Judge:

¶1             Kimmie Dwayne Baker petitions for review of the dismissal
of his petition for post-conviction relief. 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). We have considered
the petition for review and, for the reasons stated, grant review and deny
relief.

¶2            Baker was convicted by a jury of burglary in the third degree
and theft. The superior court suspended sentencing and placed Baker on
three-years’ supervised probation with the condition that he serve a ninety-
day jail term. This court affirmed the convictions and disposition but
amended the sentencing order to vacate the requirement that Baker pay for
DNA testing. State v. Baker, 1 CA-CR 12-0714 (Ariz. App. Mar. 25, 2014)
(mem. decision).

¶3             Baker filed a timely notice of post-conviction relief. After
appointed counsel notified the superior court that counsel found no basis
for post-conviction relief, Baker filed a pro se petition for post-conviction
relief, alleging claims of ineffective assistance of appellate and post-
conviction relief counsel and failure by the sentencing judge to include the
pre-sentence report (PSR) in the court record. Ruling that none of the claims
presented a material issue of fact or law that would entitle Baker to relief,
the superior court dismissed the petition.

¶4             The only issues Baker raises in his petition for review pertain
to the failure of the sentencing judge to file the PSR in the court record. As
we understand Baker’s claim, he asserts the PSR -- if it had not have been
“hidden” by the sentencing judge -- would have provided him exculpatory
evidence in regards to his sentencing and appeal in that the probation
officer who prepared the PSR referenced a Tempe Police Department report
number for the investigation of Baker’s offenses, but the number listed is
actually for an impounded vehicle case. The record reflects, however, that
the error by the Tempe Police Department in its initial assignment of an


                                      2
                            STATE v. BAKER
                           Decision of the Court

incorrect report number for the investigation of Baker was known to Baker
prior to trial as it was the subject of a pretrial motion. Indeed, in deciding
the motion, the superior court specifically ruled that Baker was permitted
to raise issues at trial “through exhibits or through witnesses as to [the]
investigative report numbers and any errors associated therewith.” Hence,
the error in the departmental report number cannot be viewed as
constituting newly discovered exculpatory evidence. See Ariz. R. Crim. P.
32.1(e) (listing elements of claim of newly discovered evidence).

¶5              To obtain an evidentiary hearing, a petitioner must make a
colorable showing that the allegations, if true, would have changed the
outcome. State v. Krum, 183 Ariz. 288, 292, 903 P.2d 596, 600 (1995). As the
superior court correctly noted in ruling that the arguments raised in the
petition for post-conviction relief failed to present a colorable claim for
relief, no allegation or showing is made by Baker as to how the alleged error
in the report number listed in the PSR or the failure of the sentencing judge
to file the PSR in the court record affected either his sentencing or the
decision on his appeal. Thus, there was no abuse of discretion by the
superior court in summarily dismissing the petition for post-conviction
relief.

¶6            In his reply to the State’s response, Baker seeks to resurrect
the claims he made to the superior court regarding ineffective assistance of
appellate and post-conviction relief counsel. We do not address these
claims because Baker did not raise them in his petition for review. State v.
Watson, 198 Ariz. 48, 51, ¶ 4, 6 P.3d 752, 755 (App. 2000); see also Ariz. R.
Crim. P. 32.9(c)(1)(ii) (requiring petition for review to include statement of
issues petitioner wishes to present to appellate court).

¶7            Accordingly, we grant review but deny relief.




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




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