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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                         REBECCA LOYA, Petitioner.

                         No. 1 CA-CR 15-0814 PRPC
                              FILED 8-10-2017


      Petition for Review from the Superior Court in La Paz County
                         No. S1500CR201100205
             The Honorable Michael J. Burke, Judge (Retired)

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

La Paz County Attorney’s Office, Parker
By Karen L. Hobbs
Counsel for Respondent

Carr Law Office PLLC, Parker
By Sandra Carr
Counsel for Petitioner
                              STATE v. LOYA
                            Decision of the Court



                       MEMORANDUM DECISION

Chief Judge Samuel A. Thumma delivered the decision of the Court, in
which Presiding Judge Margaret H. Downie and Judge Kenton D. Jones
joined.

T H U M M A, Chief Judge:

¶1             Petitioner Rebecca Loya seeks review of the superior court’s
order denying her petition for post-conviction relief, filed pursuant to
Arizona Rule of Criminal Procedure 32.1 (2017).1 Absent an abuse of
discretion or error of law, this court will not disturb a superior court’s ruling
on a petition for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577
¶ 19 (2012). Because Loya has shown no such error, this court grants review
but denies relief.

¶2            Loya purchased alcohol and consumed it while she drove
from Texas to California. At some point, Loya stopped at a rest area, threw
away empty beer bottles and resumed driving. Other drivers saw Loya
driving erratically and aggressively before she crashed into the rear of
another vehicle, killing two children, while in Arizona.

¶3            A jury found Loya guilty of two counts of second degree
murder, two counts of aggravated assault and two counts of extreme
driving under the influence. The court imposed concurrent prison terms,
the longest being 16 years for the murder convictions. On direct appeal, this
court affirmed Loya’s convictions and sentences. State v. Loya, 1 CA-CR 13-
0586, 2014 WL 2902248 (Ariz. App. June 24, 2014) (mem. dec.). In doing so,
this court reviewed for fundamental error several purported instances of
prosecutorial misconduct at trial. Id. at ¶¶ 7-19. Although this court found
some of the prosecutor’s opening statements “troubling,” and that some of
his closing arguments were improper, this court concluded that none of the
improprieties either alone or cumulatively so infected the trial with
unfairness as to amount to reversible error. Id. ¶¶ 10-11, 16-19; see also State
v. Hughes, 193 Ariz. 72, 79 ¶ 26 (1998) (“To prevail on a claim of
prosecutorial misconduct, a defendant must demonstrate that the
prosecutor’s misconduct so infected the trial with unfairness as to make the


1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


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                              STATE v. LOYA
                            Decision of the Court

resulting conviction a denial of due process.”) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)).

¶4               Loya timely sought post-conviction relief, arguing trial and
appellate counsel were ineffective. In her petition as supplemented, Loya
asserted trial counsel: (1) failed to object to several instances of
prosecutorial misconduct; (2) failed to move to preclude the admission of
Loya’s statements made after she invoked her rights pursuant to Arizona v.
Miranda, 384 U.S.436 (1966); (3) failed to interview witnesses other than the
accident reconstructionist; (4) failed to consult expert witnesses concerning
fibromyalgia and its effect on perception, judgment and reasoning; (5)
failed to present relevant information about emotional factors that affected
Loya’s mental state; (6) reserved opening statement until the close of the
State’s case; (7) failed to make relevant statements and helpful comments in
his opening statement and closing argument; (8) failed to adequately
explain to the jury the culpable mental states of criminal negligence,
reckless, and extreme reckless and relate them to Loya’s physical and
mental conditions; (9) failed to call expert witnesses at the sentencing
hearing; (10) failed to provide any reasonable defense; (11) was ill during
the trial; (12) smelled of alcohol on the breath; (13) failed to prepare Loya to
testify at trial; (14) failed to object to the prosecutor’s “badgering” of Loya
during trial; and that (15) appellate counsel failed to raise certain issues of
prosecutorial misconduct. The superior court found the first two issues
were precluded and, for the remaining issues, that Loya failed to present
colorable claims for relief. After Loya unsuccessfully sought
reconsideration, this timely petition for review followed.

¶5             Loya argues the superior court erred in finding her claims
precluded or not colorable. Regarding the latter, Loya limits her claims of
trial counsel’s purported ineffectiveness to his failure to (1) consult
fibromyalgia expert witnesses and then relate her fibromyalgia symptoms
to her mental state at the time of the offenses; and (2) adequately explain
for the jury the differences between criminal negligence, recklessness, and
extreme recklessness.

¶6            Any claim that was or could have been raised on direct appeal
or in an earlier post-conviction relief proceeding is precluded, except for
claims raised under 32.2(b). Ariz. R. Crim. P. 32.2(a). 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); State v. Nash, 143 Ariz. 392, 397 (1985).
If a defendant fails to make a sufficient showing on either prong of the


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                              STATE v. LOYA
                            Decision of the Court

Strickland test, the superior court need not determine whether the defendant
satisfied the other prong. State v. Salazar, 146 Ariz. 540, 541 (1985).

¶7             Loya is correct that she could not have raised ineffective
assistance of counsel claims on direct appeal regarding trial counsel’s
failure to object to instances of alleged prosecutorial misconduct. But this
court addressed in Loya’s direct appeal the substantive instances of
misconduct and concluded misconduct did not occur or Loya did not suffer
prejudice. Given those conclusions, Loya either cannot show that trial
counsel’s failure to object fell below objectively reasonable standards, or
alternatively, that she suffered resulting prejudice. Because both showings
are necessary to state a colorable claim of ineffective assistance of counsel,
the court did not err in dismissing Loya’s failure-to-object claim. Although
the superior court dismissed this claim on preclusion grounds, this court
may affirm a result on any basis supported by the record. See State v.
Robinson, 153 Ariz. 191, 199 (1987); see also State v. Valdez, 160 Ariz. 9, 14-15
(1989) (“Defense counsel’s determinations of trial strategy, even if later
proven unsuccessful, are not ineffective assistance of counsel. . . . Nor is
every failure to object to an improper question, exhibit, or argument worthy
of being called ineffective assistance of counsel.”).2

¶8            Turning to Loya’s allegation that ineffective assistance
occurred as a result of trial counsel’s failure to challenge the admissibility
of her “post-invocation” statements, Loya does not indicate what those
statements were. In any event, she admits that this court concluded
misconduct did not occur because the prosecutor did not refer to Loya’s
statements as a comment upon her exercising her constitutional rights.
Absent such a comment, trial counsel’s failure to challenge the admissibility
of those statements did not fall below objectively reasonable standards. Cf.
State v. White, 16 Ariz. App. 279, 282 (1972) (noting a direct or indirect
comment upon defendant’s failure to testify or give evidence at trial violates

2  Loya also argues “there were numerous additional comments and
arguments that constitute misconduct that were not preserved by objection
nor were addressed on direct appeal.” Loya, however, does not identify
what those “additional comments and arguments” were. Instead, Loya
improperly attempts to incorporate by reference arguments raised in her
supplemental petition for post-conviction relief and her reply to the State’s
response. A petition for review may not present issues through mere
incorporation by reference. Ariz. R. Crim. P. 32.9(c)(1)(iv) (requiring
petition to 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”).


                                       4
                              STATE v. LOYA
                            Decision of the Court

his or her constitutional rights). Accordingly, because Loya failed to raise a
colorable claim of ineffective assistance of counsel on this basis, the superior
court properly dismissed this claim.

¶9             The superior court also did not err in dismissing Loya’s
ineffective assistance claim relating to trial counsel’s failure to consult with
fibromyalgia experts and to use such expert evidence to explain her mental
state at the time of the offense. In dismissing the Rule 32 proceeding, the
superior court found that Loya could not prove prejudice because:

              Loya’s voluntary consumption of alcohol in an
              amount to have her BAC between 0.185 and
              0.241 at the time of the collision would
              extremely undermine any evidence concerning
              fibromyalgia, how alcohol helps alleviate some
              of its symptoms and its effect on her mental
              state at the time of the collision.

Loya does not explain how the superior court erred in making this finding.3
Given the superior court’s superior position vis-à -vis this court to evaluate
what effect, if any, the proffered evidence would have had on the jury, this
court cannot conclude that the court abused its discretion.

¶10           The superior court similarly found Loya was not prejudiced
by whatever inadequacy resulted from defense counsel’s explanation to the
jury of the applicable mental states. The court reasoned as follows:

              The jury was read the jury instructions
              regarding . . . all of the relevant mental states at
              the opening of the trial as well as at the end of
              the trial. The jury deliberated for approximately
              three hours and forty-five minutes before
              reaching their verdict. The sole issue at trial was


3 Instead, Loya refers to the court’s pre-trial denial of the State’s motion to
preclude evidence of Loya’s emotional frame of mind and fatigue at the
time of the collision as indicative of the court’s “rul[ing] that the issue was
relevant.” Loya presents no authority supporting her apparent argument
that the court’s in limine ruling regarding the admissibility of general
evidence pertaining to Loya’s emotional state and fatigue indicates a ruling
on the admissibility of expert fibromyalgia evidence. State v. Moody, 208
Ariz. 424, 452 ¶ 9 (2004) (“Merely mentioning an argument is not enough.”).



                                       5
                              STATE v. LOYA
                            Decision of the Court

              the mental states. Thus it can be assumed that
              the jury [spent] ample time in discussing the
              differences between these mental states. The
              jury sent out a question, asking for a copy of the
              police report, but never asked for any
              clarification o[r] additional explanation
              concerning the mental states.

¶11           Loya argues “[t]he fact that the jury was provided
instructions regarding the various mental states and then deliberated for
nearly four hours does not conclusively establish that the jurors understood
the difference between the complicated legal terms.” Loya, however, does
not identify any facts, record support or legal authority to support her
claim. A petition for review must set forth specific claims, present sufficient
argument supported by legal authority, and include citations 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.”). “[C]ompliance with Rule 32 is not a mere formality.”
Canion v. Cole, 210 Ariz. 598, 600 ¶ 11 (2005). A petitioner must “strictly
comply” with Rule 32 to be entitled to relief. Id.

¶12           Because Loya has failed to establish an abuse of the superior
court’s discretion in dismissing her petition for post-conviction relief, this
court grants review but denies relief.




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




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