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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     ALBERT MAURICE1 SMITH, Petitioner.

                            No. 1 CA-CR 14-0664 PRPC
                                FILED 9-22-2016


       Petition for Review from the Superior Court in Maricopa County
                            No. CR2011-105867-001
              The Honorable Kristin C. Hoffman, Judge (Retired)

                     REVIEW GRANTED; RELIEF DENIED


                                      COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Arthur G. Hazelton, Jr.
Counsel for Respondent

Albert Maurice Smith, Florence
Petitioner Pro Se




1      Petitioner refers to himself as Albert Vaughn Smith in his pleadings.
All other pleadings in the record refer to him as Albert Maurice Smith.
                             STATE v. SMITH
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.


O R O Z C O, Judge:

¶1           Petitioner Albert Maurice Smith petitions this court for
review from the dismissal of his petition for post-conviction relief. A jury
found Smith guilty of aggravated assault and we affirmed his conviction
and sentence on direct appeal. Smith argues his first counsel failed to
inform him of a plea offer that would have allowed him to receive a lesser
sentence. We deny relief because Smith has failed to show his first counsel’s
performance fell below objectively reasonable standards.

¶2            Smith was offered a “Fast Track” plea agreement at the time
of the preliminary hearing. However, Smith’s counsel requested a
determination of probable cause and a Rule 11 evaluation. Smith’s counsel
noted that he did not inform Smith of the offer because he did not believe
Smith was competent or that Smith understood any of their discussions.
The court ordered the evaluation. Smith later obtained new counsel, but
the “Fast Track” offer had expired. Under these circumstances, Smith’s first
counsel’s performance did not fall below objectively reasonable standards
when counsel made the decision not to inform Smith of the “Fast Track”
plea agreement. Additionally, Smith failed to show any prejudice resulting
from the alleged deficiency in representation. Smith did not contend he
would have accepted the “Fast Track” agreement, had he known about it.
Therefore, he failed to present a colorable claim because he failed to show
that he suffered any prejudice. Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399,
1409 (2012).

¶3             Smith argues the trial court should have returned the petition
to him pursuant to Rule 32.5 of the Arizona Rules of Criminal Procedure to
allow him to comply with the rules. However, the scope of Rule 32.5 limits
the court’s ability to return a petition to a defendant for the purpose of
correcting failures regarding the form and contents of the petition; not to
supplement a petition with new claims and theories of relief after the court
has ruled on the petition. While Smith argues for the first time in his
petition for review that he would have accepted the offer, a defendant may


                                       2
                              STATE v. SMITH
                             Decision of the Court

not present issues in arguments in a petition for review that the defendant
did not first present to the trial court. State v. Ramirez, 126 Ariz. 464, 467
(App. 1980); State v. Wagstaff, 161 Ariz. 66, 71 (App. 1988); State v. Bortz, 169
Ariz. 575, 577 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).

¶4            We grant review but deny relief.




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




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