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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

ANDREW MILO NOBLE

, Petitioner

.

No. 1 CA

- CR 16

- 0459 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR 0000

- 146404 The Honorable Rosa Mroz
, Judge

REVIEW GRANTED; RELI EF DENIED

COUNSEL

Maricopa County Attorney ' s Office , Phoenix By Diane Meloche Counsel for Respondent

Andrew Milo Noble

, Florence Petitioner

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the court, in which Judge Michael J. Brown and Judge Jennifer B. Campbell joined.STATE v. NOBLE
Decision of the Court

2 J O H N S E N
, Judge:

¶1 Andrew Milo Noble petitions this court for review from the dismissal of his petitio n 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 Noble of three counts of child molestation and one count of kidnapping. He was sentenced to three concurr ent sentences of 25 years to life on the child molestation convictions , and a consecutive sentence of 25 years to life on the kidnapping conviction. The Arizona Supreme Court affirmed his convictions and sentences in 1987

. State v. Noble

, 152 Ariz. 284 (1987). In 2016, Noble filed a successive petition for post

- conviction relief claiming ineffect ive assistance of trial counsel and that he was entitled to review of his sentence under Blakely v. Washington

, 542 U.S. 296 (200 4)

. Th e superior court su mmari ly dismissed his petition.

¶3 On review, Noble argues his trial counsel was ineffective when he "refused" to allow Noble to testify; Noble further contends his trial counsel told him that he should not testify because the jury would disbelieve him because he is Black. His claim of ineffective assistance of counsel is precluded as untimely. See Ariz. R. Cr im . P. 32.2 (a) , 32.4 (a); see also State v. Spreitz , 202 Ariz. 1, 2, ¶ 4 (2002) ( " Our basic rule is that where ineffective assistance of counsel claims are raised, or could have been raised, in a Rule 32 post

- conviction relief proceeding, subsequent claims of ineffective assistance will be deemed waived and precluded. " (Emphasis omitted. ) )

. Although Noble alleges he first learned of this issue in 2016, he h as known since his trial what his lawyer told him at that time. Further, the record of his trial indicate s that al though he did not testify on the substantive charges, he did testify (against advice of counsel) at the trial on his prior conviction s.

¶4 Noble also argues that his consecutive 25

- years

- to

- life sentences are unconstitutional, but that claim is precluded under Ariz ona Rule of Criminal Procedure 32.2 (a) because it coul d have been raised on appeal.

¶5 To the extent that we could construe Noble 's petiti on for review to raise a claim under Arizona Rule of Criminal Procedure 32.1(g) (significant change in the law), that claim is also without merit ( and was previously denied in a different Rule 32 proceeding ). Noble was sentenced
in 1987. Blakely announced a new constitutionally based rule that has no retroactive application. State v. Febles , 210 Ariz. 589, 592, ¶ 7 (App. 2005).STATE v. NOBLE
Decision of the Court

3 Because Noble ' s conviction was final before Blakely was decided in 2004, Blakely has no application to Noble

. See i d

.
¶6 Finally, in his petition for review Noble raises other allegations concerning the manner in which the Maricopa County superior court processes petitions for post

- conviction relief that he did not present to the superior court. We will not address these a llegations

. A party may not supplement the record with matters not first considered by the superior

court. See State v. Martinez , 134 Ariz. 119, 120 (App. 1982) ( " Appellate courts will review only those matters which appear in the records of the trial

co urt. " )

.
¶7 For the foregoing reasons, we grant review and deny relief.