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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 DOUGLAS WAYNE BOOKER, Petitioner.

                         No. 1 CA-CR 13-0416 PRPC
                           FILED 1-27-2015


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2011-005529-005
                 The Honorable Paul J. McMurdie, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Douglas Wayne Booker, Buckeye
Petitioner



                       MEMORANDUM DECISION

Presiding Judge Kent E. Cattani, Judge Lawrence F. Winthrop, and Judge
Peter B. Swann delivered the decision of the Court.
                             STATE v. BOOKER
                            Decision of the Court

PER CURIUM:

¶1            Douglas Wayne Booker petitions this court for review of the
dismissal of his petition for post-conviction relief. For reasons that follow,
we grant review but deny relief.

¶2            Booker pled guilty to fraudulent schemes and artifices and
two counts of organized retail theft. The superior court sentenced him to
an aggregate term of 11.25 years’ imprisonment for fraudulent schemes and
artifices and one of the organized retail theft counts. The court placed
Booker on three years’ probation for the second organized retail theft count.
Booker filed a pro se petition for post-conviction relief of right after his
counsel found no colorable claims for relief. The superior court summarily
dismissed the petition and Booker now seeks review. We have jurisdiction
under Arizona Rule of Criminal Procedure 32.9(c).

¶3            Booker argues that the three attorneys who represented him
before he pled guilty were ineffective because they did not file motions to
suppress or otherwise challenge the use of evidence obtained through the
warrantless use of a Global Positioning System (“GPS”) device to track his
vehicle. Booker’s claims are based on the United States Supreme Court’s
decision in United States v. Jones, 132 S. Ct. 945 (2012), a case that postdates
Booker’s plea and sentencing. In Jones, the Supreme Court held for the first
time that the government installation of a GPS device on a vehicle for the
purpose of monitoring the vehicle’s movements constitutes a search that
ordinarily requires a warrant. 132 S. Ct. at 949. Booker argues his counsel
should have filed motions to suppress based on the same analysis and
reasoning found in Jones. Booker also claims his post-conviction counsel
was ineffective when she failed to present this issue in a petition for post-
conviction relief and instead filed a notice of completion of post-conviction
review.

¶4            To state a colorable claim of ineffective assistance of counsel,
a defendant must show deficient performance under an objectively
reasonable standard, as well as resulting prejudice.             Strickland v.
Washington, 466 U.S. 668, 687–88 (1984). To show prejudice, a defendant
must show that there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.

¶5            Here, Booker pled guilty on September 16, 2011. The
Supreme Court decided Jones on January 23, 2012, more than four months
after Booker pled guilty. 132 S. Ct. at 945. Trial counsel’s failure to predict


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                             STATE v. BOOKER
                            Decision of the Court

that the Supreme Court would subsequently hold that law enforcement
agencies must obtain a search warrant to place a GPS tracking device on a
vehicle did not fall below objectively reasonable standards and primarily
because the Supreme Court previously held in United States v. Knotts, 460
U.S. 276, 281–82 (1983) that the warrantless use of an electronic device to
track the movements of a suspect’s vehicle did not violate the Fourth
Amendment. Moreover, nearly two years before Booker pled guilty, the
United States Court of Appeals for the Ninth Circuit upheld the warrantless
use of an electronic device to track a suspect’s vehicle. See United States v.
Pineda-Moreno, 591 F.3d 1212, 1216–17 (9th Cir. 2010); see also United States
v. Garcia, 474 F.3d 994 (7th Cir. 2007) (upholding warrantless use of GPS
tracker attached to car). The Supreme Court did not vacate the Ninth
Circuit’s ruling for further consideration in light of Jones until after Booker
pled guilty. Pineda-Moreno v. United States, 132 S. Ct. 1533 (2012).

¶6              Although the Supreme Court granted the petition for writ of
certiorari in Jones approximately two months before Booker pled guilty, see
United States v. Jones, 131 S. Ct. 3064 (2011) (granting petition on June 27,
2011), that fact does not change our analysis. In Jones, the United States
Court of Appeals for the District of Columbia Circuit had reversed a
defendant’s conviction on the basis that the district court improperly
denied a motion to suppress. See United States v. Maynard, 615 F.3d 544
(D.C. Cir. 2010). So the status of the law at the time Booker pled guilty was
that, in addition to Knotts, the Ninth Circuit and the Seventh Circuit had
upheld similar electronic searches (applying Knotts), the District of
Columbia Circuit had rejected such a search, and the United States Supreme
Court had only granted certiorari review in the District of Columbia
Circuit’s case. Booker cites no authority, and we are unaware of any, for
the proposition that his counsel should have necessarily divined that the
United States Supreme Court granted review in Jones under those
circumstances intending to affirm the District of Columbia Circuit’s ruling.

¶7            Regarding Booker’s claim relating to post-conviction counsel,
the Supreme Court’s decision in Jones is similarly unavailing. Although
Jones was decided three months before post-conviction counsel filed her
notice of completion of review, even if post-conviction counsel had raised
claims of ineffective assistance of trial counsel based on Jones, the above
analysis would still be dispositive. If post-conviction counsel simply
challenged the constitutionality of the use of a GPS device based on Jones,
the challenge would have been unsuccessful because Booker pled guilty. A
plea agreement waives all non-jurisdictional defenses, errors, and defects
that occurred prior to the plea. State v. Moreno, 134 Ariz. 199, 200, 655 P.2d
23, 24 (App. 1982). The waiver of non-jurisdictional defects includes


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                             STATE v. BOOKER
                            Decision of the Court

deprivations of constitutional rights. Tollett v. Henderson, 411 U.S. 258, 267
(1973).

¶8           Finally, the petition for review arguably presents additional
issues, but Booker did not raise those issues in his petition for post-
conviction relief. A petition for review may not present issues not first
presented to the superior court. See Ariz. R. Crim. P. 32.9(c)(1)(ii); State v.
Ramirez, 126 Ariz. 464, 467, 616 P.2d 924, 927 (App. 1980).

¶9            Accordingly, we grant review but deny relief.




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