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

MEMORANDUM DECISION

Not for Publication Rule 111, Rules of the Supreme Court

PETER J. ECKERSTROM, Presiding Judge.

¶1 Michael Wieber petitions this court for review of the trial court's order summarily denying his successive petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Wieber has not met his burden of establishing such abuse here.

¶2 Wieber was convicted after a jury trial of armed robbery, aggravated assault, and two counts of kidnapping. The trial court sentenced him to enhanced, concurrent, presumptive prison terms, the longest of which was 15.75 years. We affirmed Wieber's convictions on appeal but remanded the case to the trial court for clarification of its findings in support of his enhanced sentences. State v. Wieber, No. 2 CA-CR 2004-0407 (memorandum decision filed Aug. 21, 2006). The trial court affirmed the sentences imposed previously, and Wieber did not file a further appeal.

¶3 Wieber sought post-conviction relief in 2005, which the trial court denied, and Wieber did not petition this court for review. He filed a second notice and petition of post-conviction relief in 2008, which the trial court also denied; this court denied relief on review. State v. Wieber, No. 2 CA-CR 2009-0219-PR (memorandum decision filed Nov. 20, 2009).

¶4 Wieber filed a petition for writ of habeas corpus in August 2012 claiming his sentence was "excessive" because the trial court improperly had sentenced him as a non-dangerous offender with "two non-dangerous priors" although the jury had found him guilty of "a `first time dangerous offense' with no dangerous priors." He further contended his appellate counsel had been ineffective in failing to raise that claim. Properly treating Wieber's petition as a successive petition for post-conviction relief, see Ariz. R. Crim. P. 32.3, the trial court found Wieber's claims precluded pursuant to Rule 32.2(a)(2) and summarily denied relief.

¶5 On review, Wieber argues that Rule 32.2(a)(2) does not apply to his sentencing claim because his previous claims related to his sentence "are separate and distinguished" from his current claim. But even assuming, without deciding, that Wieber's previous claims are distinct, the trial court did not err in denying relief. Claims that could have been, but were not, raised in a previous proceeding are subject to preclusion pursuant to Rule 32.2(a)(3). Wieber's sentencing claim could have been raised on direct appeal, and he has had ample opportunities to raise his claim of ineffective assistance of appellate counsel. Accordingly, his claims are precluded, and the trial court did not err in summarily denying relief. See Ariz. R. Crim. P. 32.2(a)(3); cf. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (appellate court will affirm trial court's ruling if legally correct for any reason).

¶6 Wieber additionally claims his trial and "of-right Rule 32" counsel were ineffective in failing to raise this sentencing claim previously. Even if these claims were cognizable and not precluded, however, because Wieber did not raise these arguments in the trial court, we do not address them further. See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980) (reviewing court will not consider for first time on review issues not presented to trial court); 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).

¶7 For the reasons stated, although review is granted, relief is denied.

JOSEPH W. HOWARD, Chief Judge, J. WILLIAM BRAMMER, JR., Judge*, concurring.