State v. Ramirez ( 2017 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
MIGUEL RAMIREZ, Petitioner.
No. 1 CA-CR 16-0552 PRPC
FILED 8-15-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2013-114320-001 DT
The Honorable Pamela D. Svoboda, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Jeffrey R. Duvendack
Counsel for Respondent
Miguel Ramirez, Eloy
Petitioner
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge James P. Beene joined.
STATE v. RAMIREZ
Decision of the Court
W I N T H R O P, Judge:
¶1 Miguel Ramirez petitions this court for review of the
dismissal of his petition for post-conviction relief. We have considered the
petition for review and, for the reasons stated, grant review but deny relief.
¶2 Ramirez was convicted by a jury of misconduct involving
weapons, a class four felony. He was sentenced to the presumptive term of
ten years in prison on the substantive offense—having been on probation,
with two prior convictions for enhancement—and six months’
imprisonment on each probation count, to run consecutive to each other
and the substantive offense. His conviction and sentences were affirmed,
with a correction to presentence incarceration credit. State v. Ramirez, 1 CA-
CR 14-0119, 2014 WL 7277823 (Ariz. App. Dec. 23, 2014) (mem. decision).
¶3 Ramirez filed a timely petition for post-conviction relief,
claiming ineffective assistance of trial counsel under State v. Donald, 198
Ariz. 406, 10 P.3d 1193 (App. 2000). Ramirez claimed his counsel did not
explain the elements of the charge to him or the evidence against him, failed
to advise him to take the plea, and never put an alleged five years’ verbal
offer from the State into writing. The superior court summarily dismissed
his petition.
¶4 In his petition for review, Ramirez reiterates his claim in
principle, but now asserts that his attorney affirmatively advised him not
to take the plea, because the offers could get better and she could argue to
the jury that the State had only circumstantial evidence to convict him at
trial. We decline to consider matters and evidence not appropriately
presented below. Issues not presented to the superior court may not be
presented in the petition for review. See Ariz. R. Crim. P. 32.9 (c)(1); State v.
Wagstaff, 161 Ariz. 66, 71, 775 P.2d 1130, 1135 (App. 1988), approved as
modified, 164 Ariz. 485, 794 P.2d 118 (1990); State v. Ramirez, 126 Ariz. 464,
468, 616 P.2d 924, 928 (App. 1980).
¶5 We review the superior court’s decision whether to conduct
an evidentiary hearing for an abuse of discretion. State v. D’Ambrosio, 156
Ariz. 71, 73, 750 P.2d 14, 16 (1988). Ramirez contends he is entitled to an
evidentiary hearing based upon his uncontested allegations. The court
views allegations in a petition in light of the entire record to determine if a
claim is colorable. See generally State v. Lemieux, 137 Ariz. 143, 146, 669 P.2d
121, 124 (App. 1983). In review of the entire record, including the record on
appeal, and transcripts therefrom, Ramirez’s claims of ineffective assistance
of counsel have no merit.
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STATE v. RAMIREZ
Decision of the Court
¶6 The trial court conducted a settlement conference, at which
the charge, including the evidence needed to convict, was discussed in
detail. Ramirez was aware the evidence would show that he had a gun in
a holster on his hip, and that he is a prohibited possessor because of his
status as a felon and probationer. A Donald advisement was also given,
Ramirez was aware of the range of sentences if he proceeded to trial, and
the offer remained open until the next day. Ramirez expressed a desire to
restore his rights to carry a weapon, and discussed his willingness to admit
guilt if he were to be given probation, or intensive probation. The State did
refer to a possible offer of five years in prison, flat time, but did not make a
formal offer. The actual offer was to plead to the charge with a sentencing
range of 4.5 to 7.5 years’ imprisonment in the Arizona Department of
Corrections. The State also indicated it would be willing to agree to
concurrent terms on all his cases.
¶7 The record shows the defense attorney at Ramirez’s
conference encouraged him to ask questions and helped him to understand
what he was facing. Settlement counsel stated, “I hate to see you doing
more prison time in hopes of trying to get your gun rights restored faster.
Does that make sense?” Ramirez responded, “Yeah.” The next day,
another Donald advisement was given, and Ramirez rejected the offer.
¶8 To show ineffective assistance of counsel (“IAC”), Ramirez
must show both deficient performance by counsel and prejudice. Strickland
v. Washington, 466 U.S. 668, 687 (1984). The court is not bound by the self-
serving assertions of Ramirez, especially when clearly contradicted in the
record, and in this instance, they are not enough to require an evidentiary
hearing. See, e.g., State v. Goswick, 142 Ariz. 582, 585, 691 P.2d 673, 676 (1984)
(finding, in the context of an IAC claim, no sufficient factual basis to support
an allegation based on the self-serving affidavit of the defendant); see also
Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991) (holding that the
defendant’s self-serving affidavit regarding a plea offer was not sufficient
alone to show prejudice), superseded by statute on other grounds as stated in
United States v. Bejarano, 751 F.3d 280, 287 n.5 (5th Cir. 2014). Ramirez does
not cite any evidence in the record supporting his claim that his attorney
gave him erroneous advice that unduly influenced his decision to proceed
to trial. His counsel was obviously attempting to obtain a better result
through negotiation, which is supported by the record.
¶9 To show IAC during plea negotiations, a petitioner must
show in part that his attorney led him to make an uninformed decision to
reject a plea bargain and proceed to trial. See Donald, 198 Ariz. at 413, ¶ 16,
10 P.3d at 1200. Ramirez was fully informed of the charge and the
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STATE v. RAMIREZ
Decision of the Court
consequences. There was no formal offer for five years made by the State,
and counsel was not ineffective for failing to seek this particular agreement.
See State v. Vallejo, 215 Ariz. 193, 195, ¶ 6, 158 P.3d 916, 918 (App. 2007)
(declining to extend Donald to nonexistent plea agreements). Nor does
Ramirez’s bare claim that his attorney did not advise him to take the plea
create the implication of either deficient performance or prejudice.
¶10 Accordingly, although we grant review, we deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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