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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    ANDREW MILO NOBLE, Petitioner.

                         No. 1 CA-CR 16-0459 PRPC
                              FILED 7-27-2017


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 0000-146404
                    The Honorable Rosa Mroz, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Andrew Milo Noble, Florence
Petitioner



                       MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the court, in
which Judge Michael J. Brown and Judge Jennifer B. Campbell joined.
                             STATE v. NOBLE
                            Decision of the Court

J O H N S E N, Judge:

¶1             Andrew Milo Noble 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 Noble of three counts of child molestation
and one count of kidnapping. He was sentenced to three concurrent
sentences of 25 years to life on the child molestation convictions, and a
consecutive sentence of 25 years to life on the kidnapping conviction. The
Arizona Supreme Court affirmed his convictions and sentences in 1987.
State v. Noble, 152 Ariz. 284 (1987). In 2016, Noble filed a successive petition
for post-conviction relief claiming ineffective assistance of trial counsel and
that he was entitled to review of his sentence under Blakely v. Washington,
542 U.S. 296 (2004). The superior court summarily dismissed his petition.

¶3             On review, Noble argues his trial counsel was ineffective
when he "refused" to allow Noble to testify; Noble further contends his trial
counsel told him that he should not testify because the jury would
disbelieve him because he is Black. His claim of ineffective assistance of
counsel is precluded as untimely. See Ariz. R. Crim. P. 32.2(a), 32.4(a); see
also State v. Spreitz, 202 Ariz. 1, 2, ¶ 4 (2002) ("Our basic rule is that where
ineffective assistance of counsel claims are raised, or could have been
raised, in a Rule 32 post-conviction relief proceeding, subsequent claims of
ineffective assistance will be deemed waived and precluded." (Emphasis
omitted.)). Although Noble alleges he first learned of this issue in 2016, he
has known since his trial what his lawyer told him at that time. Further, the
record of his trial indicates that although he did not testify on the
substantive charges, he did testify (against advice of counsel) at the trial on
his prior convictions.

¶4           Noble also argues that his consecutive 25-years-to-life
sentences are unconstitutional, but that claim is precluded under Arizona
Rule of Criminal Procedure 32.2(a) because it could have been raised on
appeal.

¶5            To the extent that we could construe Noble's petition for
review to raise a claim under Arizona Rule of Criminal Procedure 32.1(g)
(significant change in the law), that claim is also without merit (and was
previously denied in a different Rule 32 proceeding). Noble was sentenced
in 1987. Blakely announced a new constitutionally based rule that has no
retroactive application. State v. Febles, 210 Ariz. 589, 592, ¶ 7 (App. 2005).




                                       2
                             STATE v. NOBLE
                            Decision of the Court

Because Noble's conviction was final before Blakely was decided in 2004,
Blakely has no application to Noble. See id.

¶6            Finally, in his petition for review Noble raises other
allegations concerning the manner in which the Maricopa County superior
court processes petitions for post-conviction relief that he did not present
to the superior court. We will not address these allegations. A party may
not supplement the record with matters not first considered by the superior
court. See State v. Martinez, 134 Ariz. 119, 120 (App. 1982) ("Appellate courts
will review only those matters which appear in the records of the trial
court.").

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




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




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