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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   JEFFREY GORDON BURKE, Petitioner.

                         No. 1 CA-CR 16-0439 PRPC
                              FILED 8-24-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2006-048884-001
                 The Honorable Sherry K. Stephens, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Jeffrey Gordon Burke, Tucson
Petitioner
                            STATE v. BURKE
                           Decision of the Court



                      MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which Chief
Judge Samuel A. Thumma and Judge Lawrence F. Winthrop joined.


B E E N E, Judge:

¶1            Jeffrey Gordon Burke (“Burke”) petitions this court for review
from the dismissal of his petition for post-conviction relief, filed pursuant
to Arizona Rule of Criminal Procedure (“Rule”) 32. We have considered
the petition for review and, for the reasons stated, grant review but deny
relief.

¶2              Burke and Darrin Martinez (“Martinez”) were involved in the
murder of M.O. Before trial began in Martinez’s case, the State offered
Martinez a plea agreement in exchange for his testimony against Burke.
Martinez accepted, and the State disclosed this plea and testimonial
agreement to Burke. Thereafter, Burke pled guilty to first degree murder.
The superior court sentenced Burke to life in prison with parole eligibility
after twenty-five years. Although advised of his right to do so, Burke did
not file a petition for post-conviction relief.

¶3             Approximately three years later, Burke’s counsel discovered
that Martinez had entered into what counsel believed to be another very
favorable plea agreement in an unrelated case, Maricopa County Cause
CR2013-004365. The plea agreement and change of plea proceedings had
been sealed. Counsel filed a motion to unseal because, counsel argued, “the
reason for the secrecy . . . seems clear: Mr. Martinez once again is
cooperating with the government” and receiving “enormous benefit[s].”
Based on counsel’s belief that Martinez had “incredible good fortune” in
his criminal cases, counsel speculated that the State may have withheld
Brady v. Maryland, 373 U.S. 83 (1963) material.

¶4            After hearing argument, the superior court granted the
motion to unseal and ordered the State to provide copies, including a copy
of a “free talk” or testimonial agreement, to counsel. The court’s order
prohibited counsel from providing copies to Burke. This court assumes that
counsel found no Brady material because counsel did not file any further
pleadings. Approximately three months later, Burke sent a letter to the
superior court in which he requested the appointment of “a qualified Rule
32 Post Conviction Lawyer” to “unseal Plea Agreement” and the change of

                                     2
                             STATE v. BURKE
                            Decision of the Court
plea proceeding, and to represent him “on a claim of newly [d]iscovered
evidence.” Although not entirely clear, it appears that Burke was seeking
the same information and relief counsel had already sought and obtained.
In fact, he attached some of counsel’s pleadings and some of the same
exhibits to his letter that counsel had attached to the motion to unseal.

¶5            The superior court considered this letter and Burke’s later
motions for status as a single and first notice of post-conviction relief. The
court noted Burke had presented evidence that Martinez “received
favorable consideration during sentencing in other cases,” but found that

       [T]he information does not appear to have existed prior to
       sentencing in this case. More importantly, [Burke] fails to
       explain why the newer information concerning this witness
       in other cases was material and why the evidence would have
       changed the conviction or sentence in this case.
       Consequently, he has not stated a claim for relief under Rule
       32.1(e).

Burke filed a motion for rehearing that was denied, and this petition for
review followed.

¶6             Absent an abuse of discretion or error of law, we will not
disturb a superior court’s ruling on a petition for post-conviction relief.
State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012); State v. Swoopes, 216 Ariz.
390, 393, ¶ 4 (App. 2007). Burke has the burden on review to show that the
superior court abused its discretion. See State v. Poblete, 227 Ariz. 537, 538,
¶ 1 (App. 2011) (petitioner has burden of establishing abuse of discretion
on review). Burke has not sustained his burden of establishing an abuse of
discretion.

¶7              On review, Burke argues that the superior court should have
appointed counsel to assist him. We note that the court never ruled on
Burke’s requests for appointed counsel. Pursuant to Rule 32.4(c)(2), the trial
court is generally required to appoint counsel “[u]pon the filing of a timely
or first notice in a Rule 32 proceeding.” See Osterkamp v. Browning, 226 Ariz.
485, 488-89, ¶¶ 11, 15–16 (App. 2011). However, the trial court is not
required to appoint counsel before the court conducts a preliminary review
of the petitioner’s notice for post-conviction relief. State v. Harden, 228 Ariz.
131, 133, ¶ 11 (App. 2011). When, as in this case, the court determines that
the notice is facially non-meritorious, the court need not appoint counsel
prior to summarily dismissing the notice pursuant to Rule 32.2(b).



                                       3
                             STATE v. BURKE
                            Decision of the Court
¶8             Burke also argues that the State “clearly suppressed”
evidence material to his defense because, he speculates, this evidence might
serve to call Martinez’s credibility into question. Burke did not raise this
claim in superior court, and therefore we do not address it. See Ariz. R.
Crim. P. 32.9(c)(1)(ii); State v. Bortz, 169 Ariz. 575, 578 (App. 1991) (issues
not first presented to the trial court may not be presented in the petition for
review.).

¶9            We therefore grant review but deny relief.




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




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