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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     EDWARD FAYE PARKS, Petitioner.

                         No. 1 CA-CR 14-0806 PRPC
                              FILED 12-6-2016


     Petition for Review from the Superior Court in Mohave County
                          No. S815CR201100853
                   The Honorable Steven F. Conn, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Mohave County Attorney’s Office, Kingman
By Matthew J. Smith
Counsel for Respondent

Edward Faye Parks, Eloy
Petitioner Pro Se
                             STATE v. PARKS
                            Decision of the Court




                    MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jon W. Thompson joined.


M c M U R D I E, Judge:

¶1            Edward Faye Parks petitions for review of the trial court’s
denial of his petition for post-conviction relief filed pursuant to Rule 32 of
the Arizona Rules of Criminal Procedure. Absent an abuse of discretion, we
will not disturb a trial court’s ruling on a petition for post-conviction relief.
State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006). Finding no error, we grant
review but deny relief.

¶2             A jury convicted Parks of disorderly conduct with a weapon
and two counts of aggravated assault. After this court affirmed his
convictions and sentences in State v. Parks, 1 CA-CR 12-0284 (Ariz. App.
Apr. 23, 2013) (mem. decision), Parks filed a petition for post-conviction
relief alleging a claim of ineffective assistance of counsel with respect to the
plea negotiations. The trial court held an evidentiary hearing at which both
Parks and his trial counsel testified. The testimony conflicted in regards to
whether trial counsel properly advised Parks about the evidence necessary
for the State to prove aggravated assault against a police officer. The trial
court found that trial counsel had properly advised Parks regarding the
State’s burden, and that Parks would not have agreed to the plea offer
regardless, as he would only accept a probation-only offer. The trial court
denied relief.

¶3              To obtain relief on a claim of ineffective assistance of counsel,
a defendant must show that counsel’s performance fell below objectively
reasonable standards and that the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Nash,
143 Ariz. 392, 397 (1985). When a trial court finds a claim colorable and
conducts an evidentiary hearing, the defendant has the burden of proving
all factual allegations by a preponderance of the evidence. Ariz. R. Crim. P.
32.8(c). After an evidentiary hearing, our review of the trial court’s factual
findings “is limited to a determination of whether those findings are clearly
erroneous.” State v. Sasak, 178 Ariz. 182, 186 (App. 1993). When “the trial
court’s ruling is based on substantial evidence, this court will affirm.” Id.



                                       2
                              STATE v. PARKS
                             Decision of the Court

¶4             Credibility determinations in a Rule 32 proceeding rest solely
with the trial judge, State v. Fritz, 157 Ariz. 139, 141 (App. 1988), and it is for
the trial court to resolve conflicting testimony. State v. Alvarado, 158 Ariz.
89, 92 (App. 1988). The trial court found counsel’s testimony credible and
Parks’ testimony not credible. Because the testimony at the evidentiary
hearing provides substantial evidence to support the trial court’s findings,
no basis exists for disturbing the trial court’s ruling that Parks failed to
sustain his burden of proving he was deprived of effective assistance of
counsel.

¶5             While the petition for review seeks to present other issues,
Parks did not raise those issues in the petition for post-conviction relief he
filed below. A petition for review may not present issues not first presented
to the trial court. Ariz. R. Crim. P. 32.9(c)(1)(ii); State v. Bortz, 169 Ariz. 575,
577 (App. 1991).

¶6             For the foregoing reasons, although we grant review, we deny
relief.




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




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