Opinion
2 CA-CR 2012-0265-PR
10-22-2012
THE STATE OF ARIZONA, Respondent, v. JUAN ANGEL RUIZ, Petitioner.
Tucson Attorneys for Petitioner
NOTICE: 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Not for Publication Rule 111, Rules of the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20100857001
Honorable Javier Chon-Lopez, Judge
REVIEW GRANTED; RELIEF DENIED
Isabel G. Garcia, Pima County Legal Defender
By Joy Athena
Tucson
Attorneys for Petitioner
KELLY, Judge. ¶1 Petitioner Juan Ruiz 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, 166 P.3d 945, 948 (App. 2007). Ruiz has not sustained his burden of establishing such abuse here. ¶2 After a jury trial, Ruiz was convicted of burglary of a residential structure, and the trial court sentenced him to an enhanced, presumptive 6.5-year term of imprisonment. This court affirmed his conviction and sentence on appeal. State v. Ruiz, No. 2 CA-CR 2010-0346 (memorandum decision filed Sept. 8, 2011). ¶3 Ruiz thereafter initiated a post-conviction relief proceeding, arguing in his petition that he had been sentenced improperly because the judge and not a jury determined that he had been on probation when he committed the offense and that the state had not adequately proven his prior conviction. He also asserted that both trial and appellate counsel had been ineffective in relation to those claims. The trial court concluded Ruiz's first two claims were precluded and he had failed to state a colorable claim of ineffective assistance of counsel. ¶4 On review, Ruiz challenges only the trial court's ruling that he had failed to state a colorable claim of ineffective assistance of appellate counsel in relation to his argument that his prior conviction had not been adequately proven. He maintains the state did not adequately prove his prior conviction because it merely presented the testimony of his probation officer and "acquiesce[d] in the Court's offer to voluntarily take judicial notice of the file." He argues the court erred in concluding otherwise and in finding he had not shown prejudice resulting from counsel's failure to raise the issue. We conclude, however, that the court correctly resolved Ruiz's claims "in a fashion that will allow any court in the future to understand the resolution." State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). We therefore adopt its ruling, and, although we grant the petition for review, we deny relief.
Because Ruiz does not address the remainder of the trial court's ruling on review, any challenge is waived. See Ariz. R. Crim. P. 32.9(c)(1) ("Failure to raise any issue that could be raised in the petition . . . for review shall constitute waiver of appellate review of that issue."); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995).
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VIRGINIA C. KELLY, Judge
CONCURRING: ________________
GARYE L. VÁSQUEZ, Presiding Judge
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PHILIP G. ESPINOSA, Judge