THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

Not for Publication Rule 111, Rules of the Supreme Court

MEMORANDUM DECISION

VÁSQUEZ, Presiding Judge.

¶1 Petitioner Kevin Chesley seeks review of the trial court's order denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P., in which he alleged the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004), was a significant change in the law entitling him to relief. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Chesley has not sustained his burden of establishing such abuse here.

¶2 After a jury trial in 1989, Chesley was convicted of burglary, kidnapping, sexual assault, and three counts of attempted sexual assault. The trial court imposed a combination of consecutive and concurrent, aggravated prison terms totaling thirty-eight years. We affirmed his convictions and sentences on appeal, State v. Chesley, No. 2 CA-CR 90-0040 (memorandum decision filed Sept. 6, 1990), and denied relief on petitions for review of the trial court's denial of relief on three of Chesley's previous petitions for post-conviction relief, State v. Chesley, No. 2 CA-CR 2004-0097-PR (decision order filed Dec. 1, 2004); State v. Chesley, No. 2 CA-CR 2002-0223-PR (memorandum decision filed June 30, 2003); State v. Chesley, No. 2 CA-CR 97-0287-PR (memorandum decision filed Apr. 23, 1998).

¶3 In September 2012, Chesley initiated the current proceeding for post-conviction relief, arguing that Blakely was a significant change in the law entitling him to relief. Concluding that Blakely was not retroactive and did not apply to cases, like Chesley's, that had become final before it was decided, the trial court summarily denied relief.

¶4 On review, Chesley again argues Blakely is a significant change in the law that is applicable retroactively and entitles him to relief. He also claims for the first time that his consecutive sentences violate the prohibition against "`multiple punishment' for the same acts" and that he is actually innocent of all criminal offenses. Because these two claims were not presented to the trial court, we do not address them. See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980); see also Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review shall contain "[t]he issues which were decided by the trial court and which the defendant wishes to present" for review).

¶5 Chesley's Blakely claim is without merit. As the trial court correctly explained, Blakely is applicable only "to cases not yet final when the opinion was issued." State v. Febles, 210 Ariz. 589, ¶ 17, 115 P.3d 629, 635 (App. 2005). "A conviction is final when `a judgment of conviction has [been] rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.'" Id. ¶ 9, quoting State v. Towery, 204 Ariz. 386, ¶ 8, 64 P.3d 828, 831-32 (2003). Thus, Chesley's convictions became final when this court issued its mandate on October 29, 1990, well before the Supreme Court issued its decision in Blakely in 2004. See id. Therefore, Blakely does not entitle him to relief, and, although we grant the petition for review, we deny relief.

PHILIP G. ESPINOSA, Judge and VIRGINIA C. KELLY, Judge, concurring.