State v. Uriarte ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
DAVID URIARTE, JR., Petitioner.
No. 1 CA-CR 12-0487 PRPC
FILED 3-18-2014
Petition for Review from the Superior Court in Maricopa County
No. CR 2010-005836-001
The Honorable John R. Hannah, Jr., Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
David Uriarte, Jr., Florence
Petitioner
STATE v. URIARTE
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould, Judge Peter B. Swann, and Judge Jon
W. Thompson delivered the following decision.
PER CURIAM:
¶1 Petitioner David Uriarte, Jr., petitions this court for review
from the dismissal of his petition for post-conviction relief. Presiding
Judge Andrew W. Gould and Judges Peter B. Swann and Jon W.
Thompson have considered the petition for review and, for the reasons
stated, grant review but deny relief.
¶2 Uriarte pled guilty to three counts of attempted molestation
of a child, all dangerous crimes against children. The trial court sentenced
Uriarte to a presumptive term of ten years of imprisonment for one count
and placed him on lifetime probation for the other two. Uriarte filed a pro
se of-right petition for post-conviction relief after his counsel found no
colorable claims for relief. The trial court dismissed the petition and
Uriarte now seeks review. We have jurisdiction pursuant to Ariz. R. Crim.
P. 32.9(c).
¶3 The petition properly presents one issue for review. Uriarte
argues that his trial counsel was ineffective when she failed to “challenge
the Court about the conduct of the Judge and the [prosecutor] for basin[g]
everything [on] pure speculation.” To state a colorable claim of ineffective
assistance of counsel, a defendant must show that counsel’s performance
fell below objectively reasonable standards and that the deficient
performance prejudiced the defendant. Strickland v. Washington, 466 U.S.
668, 687 (1984). To show prejudice, a defendant must show that there is a
“reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. “A
reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Id.
¶4 We grant review but deny relief. Uriarte does not identify
any specific action or inaction on the part of the trial court or the
prosecutor that his counsel should have challenged, nor does he identify
how any alleged action or inaction on the part of the court or the
prosecutor prejudiced him. Further, Uriarte does not identify the specific
legal grounds for any proposed challenge that his counsel should have
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STATE v. URIARTE
Decision of the Court
made. He has, therefore, failed to state a colorable claim for relief based
on ineffective assistance of counsel. If the “pure speculation” to which
Uriarte refers is the evidence supporting the convictions themselves,
Uriarte does not contest that he pled guilty to each count and gave a
sufficient factual basis to support each guilty plea.
¶5 While the petition for review presents several additional
issues, Uriarte did not raise those issues in the petition for post-conviction
relief he filed below. A petition for review may not present issues not first
presented to the trial court. State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236,
238 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).
¶6 For the reasons stated above, we grant review but deny
relief.
:mjt
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