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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                            NHA TRAN, Petitioner.

                         No. 1 CA-CR 19-0268 PRPC
                              FILED 12-24-2019


     Petition for Review from the Superior Court in Navajo County
                           No. CR 201100718
                 The Honorable Robert J. Higgins, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Navajo County Attorney’s Office, Holbrook
By Michael R. Shumway
Counsel for Respondent

Nha Tran, Winslow
Petitioner
                              STATE v. TRAN
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Lawrence F. Winthrop
joined.


B R O W N, Judge:

¶1            Nha Tran 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 and deny relief.

¶2            After Tran pleaded guilty to attempted transportation of
marijuana for sale, the superior court suspended the imposition of his
sentence and imposed probation. The probation department twice
petitioned to revoke Tran’s probation, and both times he admitted to
violating one or more conditions of probation. After the first admission, the
court reinstated probation. After the second admission, the court sentenced
Tran to an aggravated prison term of seven years.

¶3            Tran timely initiated a request for post-conviction relief
raising the following claims: (1) his sentence was contrary to law because
the superior court did not grant him any presentence incarceration credit;
and (2) his revocation counsel was ineffective because she never complied
with the court’s order to submit a brief regarding Tran’s entitlement to
credit and because she did not meaningfully present any mitigating
information on his behalf.

¶4            The superior court held an evidentiary hearing on Tran’s
petition. After considering the testimony of Tran and his former attorney,
exhibits, and the parties’ closing briefs, the court awarded Tran 172 days of
presentence incarceration credit but otherwise denied relief. Tran timely
sought review.

¶5             We will not disturb the superior court’s decision absent an
abuse of discretion, which is found where the court “makes an error of law
or fails to adequately investigate the facts necessary to support its decision.”




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                              STATE v. TRAN
                            Decision of the Court

State v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017). We accept the court’s findings
of fact unless they are “clearly erroneous.” Id. at ¶ 3.1

¶6             Arizona Revised Statutes § 13-712(B) requires that “[a]ll time
actually spent in custody pursuant to an offense until the prisoner is
sentenced to imprisonment for such offense shall be credited against the
term of imprisonment . . . .” Out-of-state custody that is “pursuant to an
arrest for an Arizona offense” counts toward the Arizona sentence. State v.
Mahler, 128 Ariz. 429, 430 (1981). The defendant bears the burden of
proving entitlement to presentence incarceration credit, State v. Cecena, 235
Ariz. 623, 625, ¶ 10 (App. 2014), and may raise the issue of insufficient credit
“at any time,” State v. Ritch, 160 Ariz. 495, 498 (App. 1989).

¶7            In closing briefs submitted after the evidentiary hearing, Tran
argued he was entitled to 172 days’ credit, and the State argued for 140
days’ credit. The court agreed with Tran and granted him the 172 days he
requested.

¶8            Tran contends on review that he actually deserves 251 days’
credit, and the State responds the superior court should have awarded only
140 days’ credit. Neither persuades us to disturb the superior court’s
determination. Tran seeks credit for time incarcerated in California, but he
fails to show he was held in custody pursuant to an Arizona warrant rather
than a California charge. See Cecena, 235 Ariz. at 625–26, ¶ 10. We do not
address the State’s counterargument because it failed to present the issue in
a timely petition or cross-petition for review. See Ariz. R. Crim. P.
32.9(c)(A)–(B).

¶9            Tran also contends he should have prevailed on his
ineffective assistance claim, pointing to evidence his revocation attorney
never briefed the court on Tran’s entitlement to presentence incarceration
credit as directed, failed to provide mitigating facts, and advised Tran to
admit questionable probation violations in the first place. To succeed on an
ineffective assistance of counsel claim, a defendant “must show that
counsel’s performance fell below reasonable standards and that the


1     The superior court declined to consider Tran’s argument that counsel’s
ineffective assistance led him to admit disputable probation violations in
the first place because Tran did not raise that issue prior to the evidentiary
hearing. We find no abuse of discretion. See State v. Lopez, 223 Ariz. 238,
240, ¶¶ 6–7 (App. 2009).




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                               STATE v. TRAN
                             Decision of the Court

deficient performance prejudiced him.” State v. Roseberry, 237 Ariz. 507,
509, ¶ 10 (2015). Failing to establish either prong bars relief. State v. Bennett,
213 Ariz. 562, 567, ¶ 21 (2006).

¶10            The superior court did not abuse its discretion in finding that
defense counsel’s performance—even if substandard in certain respects—
caused Tran no prejudice. Because the court granted Tran presentence
incarceration credit after the evidentiary hearing, the failure of his
revocation attorney to earlier address that issue was ultimately harmless.
Nor did Tran show a “reasonable probability” he would have received a
better sentence if his attorney had provided more mitigating circumstances.
See State v. Lee, 142 Ariz. 210, 214 (1984) (quoting Strickland v. Washington,
466 U.S. 668, 694 (1984)).

¶11           At the sentencing hearing, the court found the following
aggravating factors: Tran’s “criminal history, the amount of drugs that
[were] seized in [the underlying] case, poor performance on probation,
[and] new offenses in multiple states committed while on felony release.”
Tran’s attorney proposed the following mitigating facts: Tran was 42 years
old, married with two children, worked in construction, took responsibility
for his misconduct, and promised not to get into trouble in the future. The
court sentenced Tran to an aggravated term after deciding that the
“aggravating factors outweigh[ed] any mitigators.”

¶12            Tran asserts that his attorney should have (1) provided more
specific information about his family relationships and employment, (2)
mentioned his participation in classes while on probation, and (3)
emphasized his lack of recent felony arrests. The superior court did not
abuse its discretion when it concluded that the “record alone,” rather than
the performance of defense counsel, “led to [Tran’s] aggravated sentence.”
See State v. Armstrong, 208 Ariz. 345, 354, ¶ 40 (2004) (“We will not find that
a trial court has abused its discretion unless no reasonable judge would
have reached the same result under the circumstances.”). The record before
the superior court, and Tran’s statements at the sentencing hearing, showed
the purported improvements in his criminal history and his participation
in classes. Details such as the name of Tran’s employer, the ages of his
children, and the assistance Tran provided to his parents are unlikely to
have made a difference in his sentence.

¶13           In his reply to the State’s response, Tran claims that due to his
limited education and lack of proficiency with the English language, he has
had difficulty communicating with his counsel. He contends that the
superior court “did not seem to care” whether he understood the court



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                              STATE v. TRAN
                            Decision of the Court

proceedings. Tran has waived those assertions, however, by failing to raise
them in his petition for review. See State v. Guytan, 192 Ariz. 514, ¶ 15 (App.
1998) (“Generally an issue raised for the first time in a reply brief is
waived.”).

¶14           Accordingly, we grant review and deny relief.




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




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