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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     FREDDIE GENE CRUZ, Petitioner.

                         No. 1 CA-CR 16-0405 PRPC
                              FILED 9-26-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2013-426904-001
       The Honorable Carolyn K. Passamonte, Judge Pro Tempore

                REVIEW GRANTED; RELIEF GRANTED


                                   COUNSEL

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

Freddie Gene Cruz, San Luis
Petitioner



                       MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer B. Campbell joined
                              STATE v. CRUZ
                            Decision of the Court

B R O W N, Judge:

¶1           Petitioner Freddie Gene Cruz petitions this court for review
from the dismissal of his petition for post-conviction relief. Because Cruz
has raised a colorable claim of ineffective assistance of trial counsel, we
grant review and grant relief.

¶2            Cruz was convicted by a jury of possession or use of
dangerous drugs and possession of drug paraphernalia, and was sentenced
to prison. Prior to trial, Cruz's attorney filed a "Motion to Suppress Physical
Evidence and Defendant's Statements" ("motion to suppress"), and
requested an evidentiary hearing, but the superior court summarily denied
the motion without a hearing. This court affirmed his convictions and
sentences on appeal in State v. Cruz, 1 CA-CR 14-0272, 2015 WL 3536709
(Ariz. App. June 5, 2015) (mem. decision).1

¶3             Cruz filed a timely pro se petition for post-conviction relief in
the superior court claiming ineffective assistance of trial counsel relating to
the motion to suppress. After briefing, the superior court dismissed his
petition. Cruz then filed a timely petition for review to this court reiterating
his claims of ineffective assistance of trial counsel, including failure to
obtain an evidentiary hearing on the suppression issues, cite applicable case
law, fully argue that his detention pursuant to a city code violation was
illegally prolonged, and assert that search of his pocket, when he agreed to
a pat-down for weapons, exceeded the scope of what is permitted by Terry
v. Ohio, 391 U.S. 1 (1967).

¶4            In the superior court, Cruz attached an affidavit to his petition
asserting his version of the facts pertinent to the search and seizure. Cruz
claimed the officer asked for permission to conduct a pat-down for
weapons, and he agreed to that request only. The officer then reached into
Cruz's coin pocket, pulled out a small baggie, proceeded to question him
about what was in the bag, and eventually arrested him for a drug offense.

¶5            "A decision as to whether a petition for post-conviction relief
presents a colorable claim is, to some extent, a discretionary decision for the
trial court." State v. D'Ambrosio, 156 Ariz. 71, 73 (1988). However, when


1       This court noted that Cruz did not challenge the lack of an
evidentiary hearing on appeal. Cruz, 1 CA-CR 14-0272, at *1 n.2, ¶ 4.
Additionally, Cruz did not raise ineffective assistance of appellate counsel
in his petition for post-conviction relief or petition for review, so we do not
address that issue.


                                       2
                              STATE v. CRUZ
                            Decision of the Court

doubt exists, an evidentiary hearing should be held. Id.; see Ariz. R. Crim.
P. 32.8(a) ("The defendant shall be entitled to a hearing to determine issues
of material fact, with the right to be present and to subpoena witnesses.").

¶6             To prevail on a claim of ineffective assistance of counsel, a
"defendant must show that counsel's representation fell below an objective
standard of reasonableness" as defined by "prevailing professional norms."
See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). A defendant must
also "show that the deficient performance prejudiced the defense." Id. at
687. To establish prejudice, the "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. To show
prejudice from counsel's failure to file a motion to suppress evidence, a
defendant must show there is a reasonable likelihood the trial court would
have granted the motion and it would have changed the result of the trial
proceedings. State v. Berryman, 178 Ariz. 617, 622 & n.3 (App. 1994).
"[S]trategic choices made after thorough investigation of law and facts . . .
are virtually unchallengeable . . . ." Strickland, 466 U.S. at 690.

¶7             Some of Cruz's allegations may fall into the category of
"strategic choices" by counsel; however, Cruz's allegation that his counsel
failed to pursue his entitlement to an evidentiary hearing on the
suppression issues cannot be summarily disregarded as "strategic." Neither
trial counsel nor the prosecutor informed the court that Cruz was entitled to
a hearing on his motion to suppress pursuant to Rodriguez v. Arellano, 194
Ariz. 211 (App. 1999), which holds that once defendants establish a
warrantless search occurred, they have met their prima facie burden under
Arizona Rule of Criminal Procedure 16.2(b), "trigger[ing] the State's burden
of proving the lawfulness of the acquisition of the challenged evidence."
194 Ariz. at 215, ¶ 12. Additionally, trial counsel failed to assert entitlement
to a hearing pursuant to State v. Peterson, 228 Ariz. 405 (App. 2011), which
holds that a defendant may be entitled to a hearing for an alleged Miranda
violation by making "allegations which, if proved, would entitle him or her
to suppression." 228 Ariz. at 408, 410, ¶¶ 9, 15.

¶8           In the motion to suppress, Cruz's trial counsel alleged a
warrantless search and a Miranda violation. Because Cruz was entitled to
an evidentiary hearing on the suppression issues raised, the trial court erred
in summarily denying the motion without first conducting an evidentiary
hearing. Trial counsel, however, failed to object to the court's ruling.

¶9           As a result, the State was not required to produce evidence to
meet its burden of justifying a warrantless search and demonstrating why


                                       3
                               STATE v. CRUZ
                             Decision of the Court

Cruz's statements did not violate Miranda. See Ariz. R. Crim. P. 16.2(b).
And Cruz should have been given the opportunity to challenge the
reliability of the State's evidence. Thus, we cannot view trial counsel's
decision to forego Cruz's right to an evidentiary hearing as strategic. See
Rodriguez, 194 Ariz. at 212 n.1, ¶ 3 (explaining that "the obligation to prove
a prima facie case for suppression is imposed by Rule 16.2 and attaches at
the hearing, not the motion, stage"). As such, trial counsel's failure to
affirmatively assert entitlement to an evidentiary hearing, and object to the
lack thereof, constitutes a colorable claim of ineffective assistance of
counsel. See State v. Runningeagle, 176 Ariz. 59, 63 (1993) (stating that
defendants are entitled to an evidentiary hearing on a petition for post-
conviction relief when they "present[] a colorable claim—one that, if the
allegations are true, might have changed the outcome"). Because Cruz
presents a colorable claim, he is entitled to a hearing on his petition for post-
conviction relief under Arizona Rule of Criminal Procedure 32.8.2

¶10           Accordingly, we grant relief and remand to the superior court
for further proceedings consistent with this decision.




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




2     Given this analysis, we deny as moot Cruz's Request to File
Supplemental Authority.


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