Opinion
No. 2 CA-CR 2013-0455-PR
04-10-2014
THE STATE OF ARIZONA, Respondent, v. MANUEL LUIS GARCIA, Petitioner.
Harold L. Higgins, P.C., Tucson By Harold L. Higgins Jr. Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Pima County
No. CR20091371001
The Honorable James E. Marner, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Harold L. Higgins, P.C., Tucson
By Harold L. Higgins Jr.
Counsel for Petitioner
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 After a jury trial, petitioner Manuel Garcia was convicted of second-degree burglary, first-degree burglary, aggravated assault with a deadly weapon or dangerous instrument, two counts of kidnapping and fourteen counts of sexual assault. This court affirmed the convictions and sentences, which totaled 544 years' imprisonment. State v. Garcia, No. 2 CA-CR 2010-0366 (memorandum decision filed May 19, 2011). Garcia filed a notice and petition for post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P., raising claims of ineffective assistance of trial counsel. The trial court denied relief without an evidentiary hearing and this petition for review followed.
¶2 "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). In its September 2013 ruling, the trial court identified the claims Garcia raised, thoroughly analyzing each. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). Garcia has not persuaded us on review that the court's resolution of those claims was incorrect, given the evidence in the record, the affidavits Garcia presented with the Rule 32 petition, the applicable law, and the discussion between the parties and the court during the August 2013 status hearing on the petition. We note, in particular, the compelling evidence against Garcia, including DNA evidence related to both sexual assaults and victim J.'s identification at trial of the tattoos on Garcia's wrist as the same as the tattoos on the person who had assaulted her.
Deoxyribonucleic acid.
¶3 The trial court found that, even assuming counsel's performance had fallen below prevailing professional norms, Garcia had failed to raise a colorable claim for relief because he had not and could not establish that this allegedly deficient performance had been prejudicial, as required under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). See State v. Fillmore, 187 Ariz. 174, 180, 927 P.2d 1303, 1309 (App. 1996) ("[t]o avoid summary dismissal and achieve an evidentiary hearing on a post-conviction claim of ineffective assistance of counsel," petitioner must raise colorable claim on both parts of the Strickland test, deficient performance and resulting prejudice). The court's ruling and its comments during the status hearing reflect it carefully considered the record and applied the correct standards for determining whether Garcia had raised a claim that entitled him to relief or, at the very least, an evidentiary hearing.
¶4 Although Garcia argues in his petition for review that the trial court specifically addressed only some of the claims he had raised, that does not require us to infer the court never considered all of the claims and arguments Garcia had raised in the petition. Rather, based on the language of the ruling, the court's comments at the status hearing, and the presumption that a judge has reviewed the memoranda submitted to him or her, we infer the court considered and rejected all of the claims of ineffective assistance of counsel and the arguments supporting those claims. See Flynn v. Cornoyer-Hedrick Architects & Planners, Inc., 160 Ariz. 187, 193, 772 P.2d 10, 16 (App. 1988) (rejecting claim that court had not read reply to response to motion, despite absence in minute entry of express statement by court it had done so); cf. Occidental Chem. Co. v. Connor, 124 Ariz. 341, 344, 604 P.2d 605, 608 (1979) (appellate court presumes trial court considered affidavits that were part of record when it ruled on motion). Because the trial court's ruling is correct and no purpose would be served by restating the ruling in its entirety here, we adopt the ruling. See Whipple, 177 Ariz. at 274, 866 P.2d at 1360.
¶5 For the reasons stated herein, although Garcia's petition for review is granted, relief is denied.