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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JEROD LANCE WADE, Petitioner.

No. 1 CA-CR 16-0640 PRPC

Petition for Review from the Superior Court in Mohave County

No. S8015CR201201226

The Honorable Steven F. Conn, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Mohave County Attorney’s Office, Kingman

By Matthew J. Smith

Counsel for Respondent

Jerod Lance Wade, Buckeye

Petitioner

MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which 

Presiding Judge Kent E. Cattani and Judge Paul J. McMurdie joined.
STATE v. WADE

Decision of the Court

2

T H O M P S O N , Judge:

¶1 Jerod Lance Wade 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 and deny relief.

¶2 A jury convicted Wade of taking the identity of another, 

unlawful flight from law enforcement, and possession of drug 

paraphernalia. Wade admitted one prior historical felony. The superior 

court sentenced Wade to mitigated, but consecutive, prison terms. Wade 

appealed and this court affirmed the judgments and sentences. State v. 

Wade, 1 CA-CR 13-0222, 2014 WL 1921186 (May 13, 2014) (mem. decision).

¶3 Wade timely filed a notice of post-conviction relief (PCR).

After reviewing the transcripts and record, including trial counsel’s file, 

appointed counsel advised the court that counsel could find no colorable 

claims. Wade then filed a pro se petition. He raised claims ineffective

assistance of counsel (IAC). He also claimed that he was deprived of his 

right to counsel because of a complete breakdown of communication, his 

admission to the prior felony was invalid, and his sentences were illegally 

ordered to run consecutively. The superior court properly found that the 

claims were not colorable or were precluded.1

¶4 Wade moved for rehearing and for the first time alleged IAC 

of his appellate counsel. The motion was denied. This petition for review 

followed.

¶5 Initially, Wade complains that his trial counsel violated the 

attorney-client privilege in this proceeding. However, Wade waived the 

privilege when he alleged his trial counsel was ineffective. State v. Cuffle, 

 

1 Rather than attach defense counsel’s affidavit as required by Ariz. R. 

Crim. P. 32.6(a), the state responded by improperly incorporating counsel’s 

statements in the body of its response. The superior court noted its 

“absolute disapproval” and refused to consider the response, noting:

 The Court takes this opportunity to express in no uncertain 

terms its absolute disapproval of a prosecutor in a Rule 32 

proceeding where ineffective assistance of trial counsel is 

being claimed to submit a substantive pleading addressing 

such claims which is nothing more than a responsive pleading 

prepared by the very attorney whose performance at trial is 

being questioned.
STATE v. WADE

Decision of the Court

3

171 Ariz. 49, 51-52, 828 P.2d 773, 775-776 (1992). Wade also complains that 

the prosecutor and trial counsel were “buddy-buddy, co-associate[s]” who 

“teamed up” to respond to his PCR, and that the response was untimely 

filed. We do not decide this issue. We note first that the superior court did 

not consider the response when it ruled on Wade’s PCR. Secondly, Wade’s 

complaint is not properly presented in this petition for review. See Ariz. R. 

Crim. P. 32.9(c)(1) (stating in part a petition for review shall contain the 

issues decided by the trial court which the defendant wishes to present to 

the appellate court). Finally, generally the responsibility for determining 

ethical conduct of lawyers rests exclusively with the Arizona Supreme 

Court. Lang v. Superior Court, In and For County of Maricopa, 170 Ariz. 602,

603, n. 1, 826 P.2d 1228, 1229 (App. 1992).

¶6 Wade next complains that the superior court did not explain 

its reasons for denying his motion for rehearing, and that state failed to 

respond to his motion for rehearing. There is no requirement that the court 

explain its reasons for denying a motion for rehearing, and unless requested

by the court, the state is not permitted to file a response to a motion for 

rehearing. Ariz. R. Crim. P. 32.9(a). 

¶7 Finally, Wade argues that the failure to present his issues on

direct appeal is his counsel’s fault, not his fault and thus, the issues are not 

precluded. Wade did not properly present this issue to the superior court. 

He improperly raised it for the first time in his motion for rehearing. Ariz. 

R. Crim. P. 32.9(a) (motion for rehearing shall set forth in detail grounds 

wherein trial court erred) and 32.6(d) (after petition filed, no amendments 

absent leave of court). Issues not first presented to the trial court may not 

be presented in the petition for review. State v. Wagstaff, 161 Ariz. 66, 71, 

775 P.2d 1130, 1135 (App. 1988); State v. Bortz, 169 Ariz. 575, 821 P.2d 236 

(App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii). A petitioner must strictly comply 

with Rule 32 or be denied relief. Bortz, 169 Ariz. at 578, 821 P.2d at 239.

Therefore, we do not consider this claim.

¶8 As to the remaining claims of IAC, the superior court 

analyzed each IAC claim and found that either the record failed to support 

the claim, or that Wade could not show prejudice. On review, Wade has not 

shown any abuse of discretion by the superior court. Absent an abuse of 

discretion or error of law, this court will not disturb the trial court’s ruling 

on a petition for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577, 

¶ 19, 278 P.3d 1276, 1280 (2012).
STATE v. WADE

Decision of the Court

4

¶9 We grant review and deny relief.