                          NOTICE: NOT FOR PUBLICATION.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.

                    JOHN LIMON FRAUSTO, Petitioner.

                         No. 1 CA-CR 13-0169 PRPC
                               FILED 08-26-2014


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2003-010172-001 DT
                  The Honorable Andrew G. Klein, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

John Limon Frausto, Tucson
Petitioner



                       MEMORANDUM DECISION

Presiding Judge Maurice Portley delivered the decision of the Court, in
which Judge Michael J. Brown and Chief Judge Diane M. Johnsen joined.
                             STATE v. FRAUSTO
                             Decision of the Court

P O R T L E Y, Judge:

¶1           Petitioner John Limon Frausto petitions this court for review
from the dismissal of his petition for post-conviction relief. Presiding Judge
Maurice Portley, Judge Michael J. Brown and Chief Judge Diane M. Johnsen
have considered the petition for review and, for the reasons stated, grant
review and deny relief.

¶2            A jury convicted Frausto of armed robbery and he was
sentenced to prison for twenty-two years. We affirmed his conviction and
sentence on direct appeal. State v. Frausto, 1 CA-CR 05-0478 (Ariz. App.
Dec. 19, 2006). Frausto now seeks review of the summary dismissal of three
pleadings the trial court considered as his third successive petition for post-
conviction relief. We have jurisdiction pursuant to Arizona Rule of
Criminal Procedure (“Rule”) 32.9(c).

¶3            The petition for review properly presents two issues. Frausto
first argues his trial counsel was ineffective when her failure to properly
advise him of the risks and benefits of accepting a plea offer versus
proceeding to trial caused him to reject a favorable plea offer. He further
argues counsel was ineffective when she failed to submit unidentified
mitigating evidence for the trial court's consideration at sentencing.

¶4             Frausto could have raised both issues in a prior petition for
post-conviction relief. Any claim a defendant raised or could have raised
in an earlier post-conviction relief proceeding is precluded. Ariz. R. Crim.
P. 32.2(a). While Frausto contends he may raise these issues pursuant to
Rule 32.1(e) based on newly discovered evidence, he does not identify any
newly discovered evidence. Further, he does not allege nor prove there was
evidence that existed at the time of trial that he did not discover until after
trial, nor does he allege or prove he was diligent in discovering the evidence
and bringing it to the court's attention. See State v. Bilke, 162 Ariz. 51, 52-53,
781 P.2d 28, 29-30 (1989). A defendant who seeks post-conviction relief
based on newly discovered evidence must establish these as well as other
factors. Id. Therefore, Frausto has failed to state a colorable claim for relief
based on newly discovered evidence. Accordingly, we deny review of the
two issues related to the alleged ineffective assistance of his trial lawyer.

¶5            The petition for review also presents additional issues, but
Frausto did not raise those issues in his petition for post-conviction relief
filed with the trial court. A petition for review may not present issues not
first presented to the trial court. Ariz. R. Crim. P. 32.9(c)(1)(ii); see State v.




                                        2
                           STATE v. FRAUSTO
                           Decision of the Court

Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991). As a result, we will
not consider his additional issues.

¶6            We grant review of the petition for review, and deny relief.




                                :gsh




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