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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      JERRY LEON PATTON, Petitioner.

                          No. 1 CA-CR 16-0133 PRPC
                               FILED 9-19-2017


     Petition for Review from the Superior Court in Maricopa County
                          No. CR2011-005333-001
                  The Honorable Susanna C. Pineda, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

Maricopa County Attorney’s Office, Phoenix
By David R. Cole
Counsel for Respondent

Jerry Leon Patton, Florence
Petitioner
                             STATE v. PATTON
                             Decision of the Court



                       MEMORANDUM DECISION

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


J O N E S, Judge:

¶1             Jerry Patton petitions this Court for review of the dismissal of
his petition for post-conviction relief. We have considered the petition for
review and, for the reasons stated, grant review but deny relief.

¶2            A jury convicted Patton of three counts of sexual conduct with
a minor, a class 2 felony and dangerous crime against children. The trial
court sentenced him to three consecutive, presumptive twenty-year prison
terms. This Court affirmed the convictions and sentences on appeal. State
v. Patton, 1 CA-CR 12-0798, 2015 WL 1035206 (Ariz. App. Mar. 10, 2015)
(mem. decision).

¶3             Patton timely commenced a proceeding for post-conviction
relief. After appointed counsel notified the superior court that he found no
colorable claims to raise, Patton filed a pro per petition for post-conviction
relief, alleging impropriety in the grand jury proceedings, an illegal search
and seizure, denial of his right to a speedy trial, statute of limitations, denial
of due process and equal protection, error in the admission of evidence,
prosecutorial misconduct, use of perjured testimony, impermissible
vouching, and ineffective assistance of counsel. The court determined
Patton failed to establish any colorable claim for relief and summarily
dismissed the petition.

¶4            On review, Patton argues the superior court erred in denying
relief on the statute of limitations, denial of right to speedy trial, and
ineffective assistance of appellate and trial counsel claims. We review the
summary dismissal of a post-conviction relief proceeding for an abuse of
discretion, State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006) (citing State v.
Krum, 183 Ariz. 288, 293 (1995)), and will affirm “on any basis supported by
the record,” State v. Robinson, 153 Ariz. 191, 199 (1987) (citing M. Udall & J.
Livermore, Law of Evidence § 13, at 22 (2d ed. 1982)).




                                        2
                            STATE v. PATTON
                            Decision of the Court

¶5             A petitioner is precluded from raising any claim that has been
“[f]inally adjudicated on the merits on appeal.” Ariz. R. Crim. P. 32.2(a)(2).
Both the statute of limitations and denial of speedy trial rights claims were
raised by Patton and rejected by this Court on direct appeal. See Patton,
2015 WL 1035206 at *3-4, 7, ¶¶ 18-21, 37. Thus, the superior court properly
found both issues to be precluded.

¶6             As to the claims of ineffective assistance of counsel, Patton
does not offer any specifics as to the nature of the claims; instead, his
petition for review of this claim consists solely of a two-page document that
refers to other filings made in the trial court. However, a petitioner may
not proceed with a petition for review merely by incorporating documents
by reference. Ariz. R. Crim. P. 32.9(c)(iv). And, a petitioner “must strictly
comply with Rule 32 or be denied relief.” State v. Carriger, 143 Ariz. 142,
146 (1984) (citing State v. Gause, 112 Ariz. 296, 297 (1984)); see also State v.
French, 198 Ariz. 119, 122, ¶ 9 (App. 2000) (holding a petition for review
incorporating trial court filings “utterly fails to comply with Rule 32.9” and
rejecting summarily the claims raised), disapproved of on other grounds by
Stewart v. Smith, 202 Ariz. 446, 450, ¶ 10 (2002); Canion v. Cole, 210 Ariz. 598,
600, ¶ 11 (2005) (“The insistence on compliance with Rule 32 is not a mere
formality. . . . Rule 32 sets forth an orderly procedure . . . that facilitates
consideration . . . of a defendant’s claims for post-conviction relief.”). Under
these circumstances, Patton is not entitled to relief on his petition for
review.

¶7             Nonetheless, we have reviewed the documents referenced in
the petition for review and find them insufficient to establish a colorable
claim of ineffective assistance of counsel. To state a colorable claim of
ineffective assistance of counsel, a defendant must show not only that
counsel’s performance fell below objectively reasonable standards, but also
that the deficient performance prejudiced him. Strickland v. Washington, 466
U.S. 668, 687 (1984). With respect to the prejudice prong, a 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. While a defendant must satisfy both prongs of the
Strickland test, a court is not required to address both prongs “if the
defendant makes an insufficient showing on one.” Id. at 697. A petition for
post-conviction relief is subject to summary dismissal if it fails to state a
colorable claim for relief. See Ariz. R. Crim. P. 32.6(c).

¶8            Our review of the referenced documents finds they consist of
general allegations that trial counsel failed to consult with Patton and keep
him informed of important developments in the case and failed to handle


                                       3
                           STATE v. PATTON
                           Decision of the Court

the case in the manner Patton believed he should have. A defendant does
not state a colorable claim, requiring a hearing under Rule 32, based upon
mere generalizations and unsubstantiated claims of ineffective assistance of
counsel. See State v. Borbon, 146 Ariz. 392, 399 (1985). Furthermore, Patton
has not shown a reasonable probability that the outcome would have been
different in the absence of the alleged defects in counsel’s performance. See
State v. Tison, 129 Ariz. 546, 556 (1981) (“The burden of establishing the
ineffectiveness of trial counsel is upon a claimant, and proof of
ineffectiveness must be a demonstrable reality not merely a matter of
speculation.”). Patton failed to establish a colorable claim of ineffective
assistance of counsel through his generalizations, and we cannot say the
superior court abused its discretion in dismissing the claim.

¶9           Accordingly, we grant review and deny relief.




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




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