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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   JAY CAMERON THOMAS, Petitioner.

                         No. 1 CA-CR 16-0265 PRPC
                              FILED 7-20-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2008-173994-001
                             CR2009-174291-001
                             CR2011-105500-001
                             CR2013-000500-001
             The Honorable William L. Brotherton, Jr., Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Respondent

Jay Cameron Thomas, Eloy
Petitioner
                           STATE v. THOMAS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Jon W. Thompson joined.


M c M U R D I E, Judge:

¶1            Petitioner Jay Cameron Thomas 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
but deny relief.

¶2             In Maricopa County cause number CR2013-000500-001,
Thomas pled guilty to one count of fraudulent schemes and artifices with
one historical prior conviction. The plea agreement contained a stipulation
that Thomas would be sentenced to the Arizona Department of Corrections
for 17 years. In exchange for the stipulated sentence, the State agreed to
dismiss 20 counts, further enhancement allegations, and stipulate to
concurrent sentences on three probation revocation matters. The superior
court sentenced Thomas as stipulated in the plea agreement. Thomas filed
a timely pro se petition for post-conviction relief alleging ineffective
assistance of counsel for failing to investigate the case, ineffectively
communicating with him about his case, and not obtaining a lesser sentence
in the plea offer. The superior court summarily denied his petition.

¶3             In his petition for review, and reply, Thomas reiterates the
nature of his claim regarding ineffective assistance of counsel in the plea
process, but raises a completely different argument on the issue. In the
petition for review, Thomas raises, for the first time, the argument that both
his plea/sentencing counsel were ineffective for not advising him that he
could plead directly to the superior court without a plea agreement, which
would have preserved his right to present mitigation in the hopes of




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                             STATE v. THOMAS
                             Decision of the Court

obtaining a lesser sentence of 4.5 years.1 Thomas claims that under State v.
Donald, 198 Ariz. 406 (App. 2000), he was not given enough information to
make an informed decision as to this course of action. He does not reiterate
any of his claims that were presented in his original petition for
post-conviction relief.

¶4            Issues not presented to the superior court may not be
presented in the petition for review to this court. Ariz. R. Crim. P. 32.9(c)(1);
State v. Wagstaff, 161 Ariz. 66, 71 (App. 1988); State v. Ramirez, 126 Ariz. 464,
468 (App. 1980). Thomas’s arguments and issues were not raised in the
superior court, and therefore cannot be considered in the petition for
review.

¶5            Therefore, we grant review but deny relief.




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




1       Thomas’ claim operates under the erroneous assumption that if he
pled guilty to the court, he would not be subject to other possible
enhancements. Thomas is mistaken in that belief. If Thomas had pled guilty
without a plea agreement, the State could have proceeded to prove the
sentencing allegations to the court. These allegations included the claim
that Thomas had at least two prior felony convictions, and the crimes were
committed while he was on probation. If proven, these allegations would
have brought his sentence on one of the original 21 substantive counts to no
less than 15.75 years in prison, with a range up to 35 years. Also, by
pleading guilty without a plea agreement, Thomas would have faced
consecutive prison sentences on his three probation cases. See A.R.S. § 13-
708(c).


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