                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                LORENZO A. POGUE-FUENTES, Petitioner.

                         No. 1 CA-CR 16-0823 PRPC
                              FILED 12-19-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2004-134918-001
                The Honorable George H. Foster, Jr., Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent

Lorenzo A. Pogue-Fuentes, Florence
Petitioner



                       MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.
                        STATE v. POGUE-FUENTES
                           Decision of the Court

J O H N S E N, Judge:

¶1           Lorenzo A. Pogue-Fuentes petitions this court for review
from the dismissal of his petition for post-conviction relief, filed pursuant
to Arizona Rule of Criminal Procedure 32. We have considered the petition
for review and, for the reasons stated, grant review but deny relief.

¶2            Pogue-Fuentes pled guilty to second-degree murder and
aggravated assault. He entered the plea agreement after being found
competent under Rule 11. At the change-of-plea hearing, Pogue-Fuentes
testified he was taking anti-depressant medication at the time, and the court
found he entered the plea knowingly, intelligently and voluntarily.1 Before
he was sentenced, Pogue-Fuentes moved to withdraw from the plea,
asserting he was not competent at the time the plea was entered and that
he wanted to present a defense at trial. Pogue-Fuentes then was evaluated
for competency. After a hearing, the court found him incompetent and
ordered him committed to the Maricopa County Correctional Health
Services Restoration Program. Eventually, Pogue-Fuentes was restored
and found competent. He then filed another motion asking to withdraw
from the plea agreement, in which he asserted he had mistakenly believed
he would serve only the minimum term and that he could withdraw from
the agreement at any time. The court denied his motion and later sentenced
him per the plea agreement to concurrent sentences, the longer of which
was 18.5 years.

¶3            Pogue-Fuentes filed a timely notice of post-conviction relief
in July 2008. In a subsequent filing, he claimed he had not been competent
to accept the plea agreement. The court appointed counsel for him, but the
lawyer subsequently filed a notice that she was unable to identify any

1       A thorough plea colloquy was held, in which Pogue-Fuentes
testified he understood the sentencing range he faced, accepted the factual
basis for the plea and stated he had not been coerced or had additional
promises made to him. Pogue-Fuentes further acknowledged that he was
taking anti-depressant medication but that he had no side effects that
prevented him from understanding the agreement. After his lawyer stated
the factual basis for his plea, Pogue-Fuentes testified he did commit the acts
his lawyer had described, although he added that the man he stabbed to
death had "raised a beer bottle before I stabbed him . . . and he attempted
to strike me with the beer bottle." The court told Pogue-Fuentes that he
would not be allowed to withdraw from the plea, absent manifest injustice;
Pogue-Fuentes assented to that condition after a brief discussion with his
counsel.


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                        STATE v. POGUE-FUENTES
                           Decision of the Court

claims for relief. The court then granted an extension of 45 days to allow
Pogue-Fuentes to file a pro se petition. Within that period, Pogue-Fuentes
filed a document titled "Notice of Completion of Post Conviction Review
by Counsel; Request for 45 Day Extension of time to Allow Defendant to
File Proper Petition for Postconviction Relief," in which he alleged the
prosecution fabricated evidence against him. Perhaps misled by the name
of the filing, the superior court dismissed his notice, ruling that the deadline
had passed without the filing of a petition.

¶4            In December 2009, Pogue-Fuentes filed another notice of post-
conviction relief. He alleged he was not taking his prescribed psychiatric
medications when he agreed to plead guilty and claimed actual innocence,
asserting that the killing was done in self-defense and was justifiable, and
that the prosecution fabricated evidence against him. The superior court
summarily dismissed the petition as untimely.

¶5             In 2016, the superior court reinstated the first Rule 32
proceeding, ruling that proceeding should not have been dismissed as
untimely. The State filed a response, and Pogue-Fuentes filed several
documents that the court considered together as his reply. The court
summarily dismissed the petition, ruling that Pogue-Fuentes had failed to
allege any claims for which Rule 32 could provide relief. Pogue-Fuentes
then filed this petition for review.

¶6             Whether to grant post-conviction relief pursuant to Rule 32 is
within the discretion of the superior court. State v. Schrock, 149 Ariz. 433,
441 (1986). An abuse of discretion occurs if the superior court makes an
error of law or fails to adequately investigate the facts necessary to support
its decision. State v. Wall, 212 Ariz. 1, 3, ¶ 12 (2006).

¶7             A petition for review must set forth specific claims, present
sufficient argument supported by legal authority and include citation to the
record. Ariz. R. Crim. P. 32.9(c)(1)(iv) (petition must contain "[t]he reasons
why the petition should be granted" and either an appendix or "specific
references to the record," but "shall not incorporate any document by
reference, except the appendices"); Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition
must state "[t]he issues which were decided by the trial court and which the
defendant wishes to present to the appellate court for review"); State v.
Rodriguez, 227 Ariz. 58, 61, ¶ 12, n.4 (App. 2010) (declining to address
argument not presented in petition).

¶8            Pogue-Fuentes argues that although he stabbed one of the
victims three times (allegedly in self-defense), the evidence was "botched or



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                        STATE v. POGUE-FUENTES
                           Decision of the Court

tampered" with by an investigator, with the result that the medical
examiner reported the victim sustained seven stab wounds. He argues
evidence of the additional four wounds was "planted" to undermine his
claim of self-defense. As the superior court found, however, to the extent
Pogue-Fuentes means to argue that the evidence was newly discovered
pursuant to Rule 32.1(e), that claim fails because Pogue-Fuentes's "account
makes clear that he and counsel knew about the allegations of seven stab
wounds and [his own] allegation that he stabbed each victim three times."
(The court also observed that the existence of seven wounds "does not
necessarily establish that someone tampered with evidence" because it is
possible that the medical examiner identified wounds that police at the
crime scene did not see.)

¶9            To the extent that Pogue-Fuentes is claiming actual innocence,
the superior court did not abuse its discretion in denying the claim because
the court correctly found that Pogue-Fuentes had not proven by clear and
convincing evidence that, based upon the facts presented, a reasonable
factfinder could not have found him guilty of the underlying offenses. See
Rule 32.1(h); State v. Gutierrez, 229 Ariz. 573, 580, ¶ 34 (2012). Specifically,
although Pogue-Fuentes asserts that if he only stabbed the victim three
times, that "proves" self-defense, a reasonable factfinder could conclude
that Pogue-Fuentes lacked a viable claim of self-defense and was criminally
responsible for the victim's death.




                                       4
                      STATE v. POGUE-FUENTES
                         Decision of the Court

¶10          Any other claims Pogue-Fuentes raised in the superior court
but did not address in his petition for review are deemed waived and we
will not address them. State v. Smith, 184 Ariz. 456, 459 (1996) (no
fundamental error review required in post-conviction relief proceeding).

¶11          For the reasons stated, we grant review but deny relief.2




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




2      In ruling on Pogue-Fuentes's petition for review, the court has
received and considered his filing in this court dated November 22, 2017.


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