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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Respondent
,

v.

WINSTON TYA WATSON, Petitioner

.

No. 1 CA-CR 21-0163 PRPC FILED 12-2 8 -2021

Petition for Review from the Superior Court in Coconino County No. CR 20 1 9

- 00 7 1 8 The Honorable Ted S

. Reed
, Judge

REVIEW GRANTED AND RELIEF DENIED

COUNSEL
Coconino County Attorney’s Office, Flagstaff By Wil liam Ring Counsel for Respondent

Coconino County Legal Defender’s Office, Flagstaff By Joseph A. C a rver Counsel for PetitionerSTATE v. WATSON Decision of the Court

2 MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the c ourt, in which Judge Michael J. Brown and Judge Paul J. McMurdie joined.

H O W E
, Judge:

¶1 Wi nston Tya Watson petitions this court for review from the dismissal of his petition for post

- conviction relief filed pursuant to Arizona Rule of Criminal Procedure 33.1 . We have considered the petition for review and, for the reasons stated, grant review and deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 In 201 9
, W atson en tered two plea agreements
, ple a d ing guilty
to one co unt each of second

- degree murder and felony shoplifting in CR 2018

- 00013 and one count of aggravated assault in CR 2019

- 00718

. As set forth in the plea agreements, Watson agree d to serve an aggregate term of 36.5 years’ imprisonment in the 2018 case and a consecutive aggravated term of 7.5 years ’ imprisonment in the 2019 matter

. T he superior court sentenced Watson in accord ance wi th the stipulated terms

. ¶3 In 2020, Watson sought post

- conviction relief (“PCR”) only in the 2019 case , and the superior court a ppointed PCR counsel

. In his PCR petition, Watson asserted that he received ineffec t ive assistance of counsel (“IAC”) because trial counsel advis ed him to enter a plea agreement in the 2019 case that required him to serve “the longest possible sentence for a Class 5 felony ” and th erefore “ conferr ed no benefit on him. ”

¶4 In response, t he S tate provid ed a supporting affidavit from trial counsel, who avowed in part : (1) she represented Watson in both
matters , and the p lea negotiations in the 2018 case “ were conducted in conjunction with plea negotiations ” in the 2019 case ; ( 2 ) the State agree d to allow him to “ plea to Second Degree Murder so long as he served a stipulated 44

- year prison sentence ” in total ; ( 3 ) avoiding a first

- degree

- murder conviction in the 2018 case was “contingent upon [him] stipulating to plead guilty to Count 1

- Aggravated Assault with two historical prior felony convictions” in the later case ; and ( 4 ) the plea agreements “resulted in [him] avoiding a life sentence

. ” T he State argued that despite Watson’s contrary assertion, he had “received a significantSTATE v. WATSON Decision of the Court

3 benefit because of defense counsel’s representation” based on the global resolution of all his pending charges.

¶5 The superior court summarily dismissed Watson’s PCR proceeding
, finding that the petitio n “failed to raise a colorable claim pursuant to” Rule 33 and that the claims “fail[ed] to present a material issue of fact or law which would entitle [Watson] to relief.” This petition for review followed.

DISCUSSION

¶6 We will not disturb th e court’s ruling unless Watson estab lishes an abuse of discretion

. S ee S tate v. Poblete , 227 Ariz. 537, 538 ¶ 1 (App. 2011). He has not done so here. A review petition must include “reasons why the appellate court should grant the petition.” Ariz. R. Crim. P. 33.16(c)( 2 ) (D). “ A party ’ s failure to raise any issue that could be raised in the petition for review

. . . constitutes a waiver of appellate review of that issue. ” A riz. R. Crim. P. 33.16(c)(4) ; see also State v. Carver , 160 Ariz. 167, 175 (1989) (failing to argue a claim abandons and waives that claim)

.
¶7 In his petition for review
, Watson acknowledg es that trial counsel’s affidavit sufficiently addressed the IAC complaint s that he presented to the superior court
, further explain ing that “ PCR counsel [ first ] learned of the legal connection between the two agreements” from the affidavit

. H aving so conceded
, Watson neither re assert s his IAC claim n or otherwise argue s that the sup erior court erred in dismissing his PCR proceeding

. T herefore
, given the a bsence of any challenge to trial counsel’s effectiveness, we deem the argument waived

. ¶8 Furthermore
, we declin e PCR counsel ’s alternative request

“ to rev iew the record for possible error” under Ander s v . California , 388 U.S. 924 (1967)
, t hen grant Watson 45 days “to file any pro se supplemental brief

. ” As a threshold matter , because Watson did not raise this issue in the superior court
, w e need not consider it

. See Ariz. R. Crim. P. 33.16(c)(2)(B) (limiting review to issues decided by the superior court); State v. Wagstaff
, 161 Ariz. 66, 71 ( App. 198 8 ) ( r eviewing court does not consider even meritorious issues unless they we r e presented to the superior court ). I n any event, Arizona law does not require an Anders review i n PCR proceedings

. State v. Chavez
, 243 Ariz. 3 13, 31 7

– 19 ¶ ¶ 12, 17

– 18 (App. 2017) ; see also State

v. Banda , 232 Ariz. 582, 585 ¶ 12 (App. 2013) (pleading defendants waive “all non

-

jurisdictional defects and defenses, including [IAC] claims [,]

. . . except those that relate to the validity of a plea”).STATE v. WATSON Decision of the Court

4 CONCLUSION

¶9 Accordingly
, although w e grant review , we deny relief

.