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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 RAFAEL ANGEL JARAMILLO, Petitioner.

                         No. 1 CA-CR 15-0671 PRPC
                              FILED 7-25-2017


    Petition for Review from the Superior Court in Maricopa County
                        Nos. CR2008-030698-001
                             CR2008-031235-001
                  The Honorable Hugh E. Hegyi, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Gerald R. Grant
Counsel for Respondent

Robert J. Campos & Associates PLC, Phoenix
By Robert J. Campos
Counsel for Petitioner
                           STATE v. JARAMILLO
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kenton D. Jones and Judge Donn Kessler1 joined.


D O W N I E, Judge:

¶1            Rafael Angel Jaramillo petitions for review from the dismissal
of his petition for post-conviction relief (“PCR”) filed in CR 2008-031235
pursuant to Arizona Rule of Criminal Procedure 32.2 For the following
reasons, we grant review but deny relief.

¶2             A jury found Jaramillo guilty of six counts of armed robbery,
six counts of kidnapping, and one count of misconduct involving weapons.
After finding that Jaramillo had two historical prior felony convictions, the
court sentenced him to presumptive concurrent terms of 15.75 years’
imprisonment for the armed robbery and kidnapping convictions. The
court imposed a presumptive concurrent ten-year term for the misconduct
involving weapons offense. On direct appeal, this Court affirmed
Jaramillo’s convictions and sentences, and the mandate issued on
December 8, 2011. State v. Jaramillo, 1 CA-CR 10-0722, 2011 WL 3211083
(Ariz. App. July 28, 2011) (mem. decision).

¶3             Jaramillo filed a notice for PCR on January 18, 2012. In the
ensuing petition, he argued, inter alia, that his appellate counsel was
ineffective by failing to raise, on appeal, “the trial court’s finding that the
State’s pretrial identification of [Jaramillo] was not unduly suggestive.”
After an evidentiary hearing, the superior court determined the pretrial
identification was not unduly suggestive and also concluded Jaramillo’s
filing was untimely. The court dismissed his petition, and this timely
petition for review followed.



1      The Honorable Donn Kessler, Retired Judge of the Arizona Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.

2     Jaramillo does not challenge his convictions in CR 2008-030698.
Accordingly, we address only the proceedings in CR 2008-031235.



                                      2
                           STATE v. JARAMILLO
                            Decision of the Court

¶4            “We will not disturb a trial court’s ruling on a petition for
post-conviction relief absent a clear abuse of discretion.” State v. Swoopes,
216 Ariz. 390, 393, ¶ 4 (App. 2007). We will affirm the trial court’s ruling if
legally correct for any reason. State v. Perez, 141 Ariz. 459, 464 (1984); State
v. Cantu, 116 Ariz. 356, 358 (App. 1977).

¶5             We assume for the sake of argument that Jaramillo’s PCR
filings were timely. The relevant substantive inquiry, then, is whether
appellate counsel’s failure to raise the pretrial identification issue on appeal
fell below objectively reasonable standards, causing prejudice to Jaramillo.
See Strickland v. Washington, 466 U.S. 668 (1984); State v. Nash, 143 Ariz. 392
(1985). To raise a colorable claim of ineffective assistance of appellate
counsel, “the petitioner must offer evidence of a reasonable probability that
but for counsel’s unprofessional errors, the outcome of the appeal would
have been different.” State v. Herrera, 183 Ariz. 642, 647 (App. 1995).

¶6             At the evidentiary hearing, Jaramillo offered no evidence that
appellate counsel’s failure to raise the line-up issue amounted to an
“unprofessional error” or that, had counsel raised the issue, the outcome of
his direct appeal would have been different. Although Jaramillo’s lawyer
argued that appellate counsel was ineffective, arguments of counsel are not
evidence. State v. King, 110 Ariz. 36, 42 (1973). Instead of focusing on
appellate counsel’s conduct, Jaramillo presented testimony from a retired
police officer, who opined that the line-up was unduly suggestive. But
absent evidence that appellate counsel’s failure to raise the issue fell below
prevailing professional norms and would have changed the outcome on
direct appeal, the ineffective assistance of counsel claim predicated on that
issue fails. Moreover, the superior court’s ruling on the substantive issue
— which it explained in some depth — is supported by the record and
applicable law, particularly given the abuse of discretion standard
applicable to such rulings. See State v. Prion, 203 Ariz. 157, 160, ¶ 14 (2002).

                               CONCLUSION

¶7            For the foregoing reasons, we grant review but deny relief.




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

                                         3
