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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        LOIS KAY CLOUD, Petitioner.

                         No. 1 CA-CR 16-0217 PRPC
                              FILED 8-8-2017


      Petition for Review from the Superior Court in Yuma County
                         No. S1400CR200300438
             The Honorable Lawrence C. Kenworthy, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Yuma County Attorney’s Office, Yuma
By Jon R. Smith
Counsel for Respondent

Law Offices of Mary Elizabeth Perez, San Diego, CA
By Mary E. Perez
Counsel for Petitioner
                            STATE v. CLOUD
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which Judge
Peter B. Swann and Judge Jon W. Thompson joined.


M c M U R D I E, Judge:

¶1            Lois Kay Cloud petitions for review of the dismissal of her
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 Cloud of first degree murder, conspiracy to
commit first degree murder, solicitation to commit first degree murder, and
facilitation to commit first degree murder. The superior court sentenced her
to concurrent prison terms of natural life on the murder conviction,
statutory life on the conspiracy conviction, seven years on the solicitation
conviction, and two years on the facilitation conviction. This court affirmed
the convictions and sentences on appeal. State v. Cloud, 1 CA-CR 10-0840,
2014 WL 645185 (Ariz. App. Feb. 18, 2014) (mem. decision).

¶3           Cloud filed a timely petition for post-conviction relief, raising
claims of actual innocence, illegal sentence, and ineffective assistance of
appellate counsel. The superior court summarily dismissed the petition,
ruling Cloud failed to present a colorable claim for relief. This petition for
review followed.

¶4           On review, Cloud argues the superior court erred by
summarily dismissing her petition without holding an evidentiary hearing
on her 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). We may affirm the superior court’s ruling “on any basis
supported by the record.” State v. Robinson, 153 Ariz. 191, 199 (1987).

¶5            Summary dismissal of a petition for post-conviction relief is
appropriate “[i]f the court . . . determines that no . . . claim presents a
material issue of fact or law which would entitle the defendant to relief
under this rule and that no purpose would be served by any further
proceedings.” Ariz. R. Crim. P. 32.6(c). To be entitled to an evidentiary
hearing, a petitioner must present a colorable claim. State v. Krum, 183 Ariz.
288, 292 (1995). A colorable claim is one that, if the allegations are true,



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                             STATE v. CLOUD
                            Decision of the Court

would probably have changed the outcome. State v. Amaral, 239 Ariz. 217,
220, ¶ 11 (2016). In determining whether a claim is colorable, the allegations
are viewed in the light of the entire record. State v. Lemieux, 137 Ariz. 143,
146 (App. 1983).

¶6            The superior court did not err by summarily dismissing the
petition for post-conviction relief. The actual innocence claim is the same
claim that was raised and rejected by this court on direct appeal. Cloud, 2014
WL 645185 at *12–13, ¶¶ 46–50. Because Cloud failed to offer anything new
to her claim of actual innocence in her petition for post-conviction relief, the
same analysis of the evidence that resulted in rejection of this claim on
appeal supports the superior court’s ruling that Cloud failed to state a
colorable claim of actual innocence. See Ariz. R. Crim. P. 32.2(a)(2) (“A
defendant shall be precluded from relief under this rule based upon any
ground finally adjudicated on the merits on appeal . . . .”).

¶7             Likewise, the superior court did nor err by denying relief on
the claim of illegal sentence. “Though the state has the burden to plead and
prove grounds of preclusion, any court on review of the record may
determine and hold an issue is precluded regardless of whether the state
raises preclusion.” Ariz. R. Crim. P. 32.2(c). The illegal sentence claim is
precluded because it was waived by the failure to raise it on direct appeal.
Ariz. R. Crim. P. 32.2(a)(3); see also State v. Herrera, 183 Ariz. 642, 647
(App. 1995) (holding appellate counsel’s waiver of issues on appeal binds
the defendant, “and those waived issues cannot be resurrected in
post-conviction proceeding”).

¶8             Finally, the superior court did not abuse its discretion by
ruling Cloud failed to state a colorable claim of ineffective assistance of
appellate counsel. To state such a colorable claim, a defendant must show
that counsel’s performance fell below objectively reasonable standards and
that the deficient performance was prejudicial. Strickland v. Washington, 466
U.S. 668, 687 (1984). With respect to the prejudice prong of this test, the
defendant must show to a reasonable probability that, but for counsel’s
deficient acts or omissions, the outcome of the case would have been
different. State v. Schurz, 176 Ariz. 46, 58 (1993). Thus, for a claim of
ineffective assistance of appellate counsel there must be a showing that the
outcome of the appeal would have been different. Herrera, 183 Ariz. at 647.

¶9            Cloud argues her appellate counsel was ineffective for failing
to argue prejudice in regards to the claim raised on appeal that the
conviction violated her right to a speedy trial. Specifically, she contends her
appellate counsel should have argued that she was prejudiced by the time


                                       3
                             STATE v. CLOUD
                            Decision of the Court

it took to bring her case to trial due to her failing health. Cloud contends
that her health had deteriorated to the extent that she could not participate
in her own trial. Prejudice, however, is only one of four factors an appellate
court considers in assessing whether the right to a speedy trial has been
violated. See State v. Henry, 176 Ariz. 569, 578–79 (1993). As this court noted
on appeal, Cloud played a significant role in her trial’s delay. Cloud, 2014
WL 645185 at *3, ¶ 12. On this record, the superior court could reasonably
find that Cloud was not prejudiced by appellate counsel’s presentation of
this issue because nothing her counsel could have argued would have
changed the outcome on appeal. This is particularly true given this court’s
holding on appeal that Cloud “was able to fully participate despite her
vision and hearing problems.” Id. at *6, ¶ 27.

¶10           Accordingly, although we grant review, we deny relief.




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




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