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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CORY EVERETT LEWIS, Petitioner.

No. 1 CA-CR 17-0787 PRPC

Petition for Review from the Superior Court in Maricopa County

Nos. CR2007-030289-001 and CR2015-109629-001

The Honorable Danielle J. Viola, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Gerald R. Grant

Counsel for Respondent

Cory Everett Lewis, Florence

Petitioner

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which 

Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.

FILED 7-3-2018
STATE v. LEWIS

Decision of the Court

2

C A T T A N I, Judge:

¶1 Cory Everett Lewis petitions for review from the superior 

court’s summary dismissal of his petition for post-conviction relief. For 

reasons that follow, we grant review but deny relief.

¶2 In 2016, Lewis pleaded guilty to sexual abuse, attempt to 

commit sexual conduct with a minor, and attempt to commit molestation 

of a child. Lewis also stipulated to two aggravating factors: emotional harm 

to the victim and a prior felony conviction in the last 10 years. (Lewis 

acknowledged a 2007 child abuse conviction for which he was sentenced to 

a 10-year term of probation.)

¶3 The superior court sentenced Lewis to the presumptive term 

of 10 years’ imprisonment on the attempted sexual conduct with a minor 

charge, and to concurrent terms of lifetime probation on the remaining 

counts, to begin upon discharge from prison. The court also revoked 

Lewis’s probation stemming from the 2007 conviction and sentenced him 

to one year in prison, to be served consecutively to the sentence imposed in 

the instant case.

¶4 Lewis filed a pro se petition for post-conviction relief, claiming 

ineffective assistance of plea counsel and asserting that his plea was 

involuntary. The superior court summarily dismissed his petition, and 

Lewis filed a timely petition for review.

¶5 On review, Lewis re-urges the claims raised in his petition for 

post-conviction relief. He also raises several new issues (claims relating to 

a preliminary hearing, the lack of a bail hearing, his Rule 32 counsel, and 

exculpatory evidence), which we do not address because they were not first 

presented to the superior court. See Ariz. R. Crim. P. 32.9(c)(4)(B)(ii) 

(requiring that a petition for review “must contain . . . a statement of issues 

the trial court decided that the defendant is presenting for appellate review”) 

(emphasis added); State v. Bortz, 169 Ariz. 575, 578 (App. 1991); see also State 

v. Swoopes, 216 Ariz. 390, 403, ¶ 41 (App. 2007) (noting that there is no 

review for fundamental error in a post-conviction relief proceeding).

¶6 Summary dismissal of a petition for post-conviction relief is 

appropriate if the court determines that the petition fails to state a colorable 

claim for relief, i.e., the petition fails to allege facts that, if true, would 

probably have changed the outcome of the criminal proceedings. Ariz. R. 

Crim. P. 32.6(d)(1); State v. Amaral, 239 Ariz. 217, 220, ¶ 11 (2016). We 
STATE v. LEWIS

Decision of the Court

3

review the superior court’s ruling on a petition for post-conviction relief for 

an abuse of discretion. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012).

¶7 Lewis argues that his counsel was ineffective because (1) 

counsel did not challenge the constitutionality of A.R.S. §§ 13-1404 and 13-

1410, and (2) counsel failed to advise him on the wording of the statute—

A.R.S. § 13-1405—under which he was indicted. To prevail on a claim of 

ineffective assistance of counsel, Lewis must show that counsel’s 

performance fell below objectively reasonable standards and that the 

deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 

668, 687–88 (1984); State v. Nash, 143 Ariz. 392, 397 (1985). If a defendant 

fails to demonstrate either prong of the Strickland test, the superior court 

need not consider the other prong. State v. Salazar, 146 Ariz. 540, 541 (1985).

¶8 Lewis argues that his counsel should have challenged the 

constitutionality of A.R.S. §§ 13-1404 (sexual abuse) and 13-1410 (child 

molestation), based on the reasoning in a federal district court case decided 

after Lewis pleaded guilty. See May v. Ryan, 245 F. Supp. 3d 1145 (D. Ariz. 

2017) (holding that Arizona’s child molestation statute violates a 

defendant’s federal due process right). But the Arizona Supreme Court has 

expressly rejected the constitutional arguments relied on in May, see State v. 

Holle, 240 Ariz. 300, 308–09, ¶¶ 38–44 (2016), cert. denied, 137 S. Ct. 1446 

(2017), and we are bound by the decisions of that court. See State v. Cooney, 

233 Ariz. 335, 341, ¶ 18 (App. 2013). Thus, Lewis’s reliance on May is 

unavailing.

¶9 Lewis also asserts that his counsel should have advised him 

that to be convicted of sexual conduct with a minor under A.R.S. § 13-1405, 

the State would have to show that he engaged in “sexual intercourse”

(which he argues does not include masturbatory contact) with the victim. 

But the criminal code defines “sexual intercourse” to include masturbatory 

contact, see A.R.S. § 13-1401(4), and Lewis does not further explain how 

counsel’s explanation would have affected his decision to plead guilty to 

attempted sexual conduct with a minor. Accordingly, Lewis fails to state a 

colorable claim of ineffective assistance of counsel.

¶10 Lewis also argues that he was coerced into accepting the plea 

because he was told that he would not receive a fair trial. But he offers only 

his own conclusory statements that his plea was involuntary. And those 

statements are inconsistent with the record developed during the change of 

plea hearing, during which Lewis affirmed that his plea was voluntary and

that he agreed with the factual basis for the charges, as stated by his counsel. 
STATE v. LEWIS

Decision of the Court

4

Moreover, at sentencing, when prompted by the court, he re-affirmed that 

the facts underpinning his guilty plea were accurate.

¶11 Lewis further asserts that he was suffering from debilitating 

physical and emotional issues that rendered his plea involuntary. But when 

questioned by the superior court during the plea proceedings, he expressly 

stated that he understood the proceedings, and he has not established a 

basis from which to conclude that he was in such physical pain or turmoil 

that his plea was involuntary. Accordingly, the superior court did not 

abuse its discretion by summarily rejecting this claim. See Gutierrez, 229 

Ariz. at 577, ¶ 19.

¶12 Accordingly, we grant review but deny relief.