Opinion
No. 2 CA-CR 2018-0094-PR
08-14-2018
THE STATE OF ARIZONA, Respondent, v. LUIS ARMANDO PERAZA, Petitioner.
COUNSEL The Law Offices of Thomas Jacobs, Tucson By Thomas Jacobs 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Pima County
No. CR20140630001
The Honorable Scott Rash, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
The Law Offices of Thomas Jacobs, Tucson
By Thomas Jacobs
Counsel for Petitioner
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred.
BREARCLIFFE, Judge:
¶1 Petitioner Luis Peraza seeks review of the trial court's order denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "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 (App. 2007). Peraza has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Peraza was convicted of aggravated driving under the influence (DUI) while his license was suspended or revoked and aggravated driving with an alcohol concentration of .08 or more while his license was suspended or revoked. This court affirmed his convictions and sentences on appeal. State v. Peraza, 239 Ariz. 140 (App. 2016). Peraza thereafter sought post-conviction relief arguing his trial counsel had been ineffective in that he told him "he would not be permitted to testify at the hearing on his Motion to Dismiss." In an affidavit filed with his petition, Peraza averred he had asked to call an attorney at the scene of his arrest "at approximately 5:45 a.m.," his phone had not been working, and the officer had declined his request to use the officer's phone. This avowal is in contrast with the statement of facts in Peraza's motion to suppress and the testimony of the officer at the suppression hearing that Peraza had asked to call an attorney when they arrived at the substation after his arrest. Further, although Peraza testified at trial, he did not testify he had asked for an attorney before arriving at the substation. With its response, the state filed an affidavit from trial counsel in which she avowed she "did not tell . . . Peraza that he was not permitted to testify at the Evidentiary Hearing." The trial court summarily denied relief.
¶3 On review, Peraza contends the "[t]rial court abused its discretion when it did not consider [his] allegations as true." To establish a claim of ineffective assistance of counsel, a defendant must show counsel's performance was deficient under prevailing professional norms and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). A trial court properly dismisses a post-conviction relief petition without a hearing if, after reviewing the claims presented, it
determines the petitioner has stated no claim that "presents a material issue of fact or law [which] would entitle the defendant to relief" under Rule 32. Ariz. R. Crim. P. 32.6(d).
¶4 Peraza's bald assertion that counsel told him he could not testify did not create an issue of material fact precluding summary dismissal of the petition for post-conviction relief. To state a colorable claim, a defendant must do more than contradict what the record plainly shows. See State v. Jenkins, 193 Ariz. 115, ¶ 15 (App. 1998). Our supreme court explained in State v. Krum, 183 Ariz. 288, 294-95 (1995), that the trial court is entitled to make a threshold assessment of the credibility of assertions in an affidavit based on the nature of those assertions and the record. Thus, a trial court may reject summarily and without an evidentiary hearing claims based on an affidavit that is lacking in a "reliable factual foundation" and "some substantial evidence." Id.
¶5 As detailed above, Peraza's claims are contradicted by the record before us. See Jenkins, 193 Ariz. 115, ¶ 15 (defendant's claim he was unaware sentence "must be served without possibility of early release" not colorable when "directly contradicted by the record"). Indeed the statement of facts set forth in Peraza's motion to suppress states that he requested counsel at the substation, not at the scene. And he makes no claim that counsel misrepresented the facts as he had reported them to her, only that she denied him the opportunity to testify at the hearing on the motion. Furthermore, Peraza acknowledges in his affidavit that his phone did not work, and he has cited no authority to support his implicit proposition that the arresting officer was able or required to provide him with a phone immediately at the scene. See Ariz. R. Crim. P. 32.9(c)(4)(B) (petitioner must cite material facts in record and include citations to legal authority).
¶6 For these reasons, we grant the petition for review, but deny relief.