                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                     STATE OF ARIZONA, Respondent,

                                        v.

                 JOHN BATISTE CHARPIOT, III, Petitioner.

                         No. 1 CA-CR 13-0282 PRPC
                             FILED 12-16-2014


     Petition for Review from the Superior Court in Maricopa County
                          No. CR2010-157828-001
                   The Honorable Connie Contes, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

John Batiste Charpiot, III, Florence
Petitioner



                       MEMORANDUM DECISION

Presiding Judge Jon W. Thompson, Judge Donn Kessler, and Judge Kent E.
Cattani delivered the decision of the Court.
                           STATE v. CHARPIOT
                           Decision of the Court

PER CURIAM:

¶1           Petitioner John Batiste Charpiot, III seeks review of the
superior court’s summary dismissal of his petition for post-conviction relief
filed pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. We
grant review but deny relief.

¶2             Pursuant to a plea agreement, Charpiot pleaded guilty to four
counts of attempted child molestation and one count of sexual abuse of a
minor under fifteen years of age. In accordance with the terms of the plea
agreement, the superior court imposed three consecutive prison terms
totaling thirty-five years, to be followed by two concurrent terms of lifetime
probation.

¶3            On March 26, 2012, Charpiot filed a timely first notice of post-
conviction relief. Charpiot’s attorney thereafter filed a notice stating he had
reviewed the record but had found no claims to raise in a post-conviction
relief proceeding. The superior court gave Charpiot 45 days to file a pro se
petition for post-conviction relief, but on June 12, 2012, after that time had
elapsed, the superior court dismissed the post-conviction proceedings due
to Charpiot’s failure to file a petition raising any claims for relief.

¶4            On February 26, 2013, Charpiot filed a second notice of post-
conviction relief in which he indicated he was alleging newly discovered
material facts and that his failure to file a timely petition was without fault
on his part. Charpiot thereafter filed a pro se petition in which he alleged as
his sole claim that the superior court breached the plea agreement by
imposing aggravated sentences without holding a hearing on the existence
of aggravating factors.

¶5             The superior court summarily dismissed Charpiot’s pro se
petition. The court found that, because Charpiot had not alleged any new
facts, he had failed to support his claim of newly discovered evidence. The
court also found that Charpiot’s failure to file a timely petition in the first
post-conviction relief proceeding was not without fault because he had
received notice of the court’s order allowing 45 days to submit a pro se
petition. Additionally, the court found Charpiot’s claim that the sentencing
court had improperly imposed aggravated sentences—a claim under Rule
32.1(c)—was precluded in a successive Rule 32 petition. See Ariz. R. Crim.
P. 32.4(a) (“Any notice not timely filed may only raise claims pursuant to
Rule 32.1(d), (e), (f), (g) or (h).”).




                                      2
                            STATE v. CHARPIOT
                            Decision of the Court

¶6            We review the summary dismissal of a petition for post-
conviction relief for an abuse of discretion. State v. Bennett, 213 Ariz. 562,
566, ¶ 17, 146 P.3d 63, 67 (2006). In summarily dismissing the successive
post-conviction proceedings, the superior court clearly identified
Charpiot’s claims and, as summarized above, resolved them appropriately.

¶7              In his petition for review, Charpiot includes additional facts
and arguments not raised before the superior court purporting to justify his
failure to file a pro se petition in the first post-conviction relief proceeding.
A petitioner may not include new facts or argument in the petition for
review not first presented to the superior court in the petition for post-
conviction relief. State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App.
1980).

¶8            Accordingly, we grant review but deny relief.




                                    :ama




                                       3
