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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                          No. 1 CA-CR 13-0811 PRPC
                                FILED 4-28-2015


            Appeal from the Superior Court in Maricopa County
                        No. CR2009-007454-001DT
                   The Honorable Janet E. Barton, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

Office of the Attorney General, Phoenix
By Karin Tang Royle
Counsel for Respondent

Edward Lamar Carpenter, Buckeye
Petitioner
                          STATE v. CARPENTER
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.



G O U L D, Judge:

¶1           Petitioner Edward Lamar Carpenter petitions this court for
review from the dismissal of his petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
and deny relief.

¶2            A jury convicted Carpenter of five counts of fraudulent
schemes and artifices and five counts of fraudulent schemes and practices.
The trial court sentenced Carpenter to an aggregate term of twelve years'
imprisonment and we affirmed his convictions and sentences on direct
appeal. State v. Carpenter, 1 CA-CR 11-0083 (Ariz. App. Oct. 16, 1012) (mem.
decision). Carpenter filed a pro se petition for post-conviction relief after
his counsel found no colorable claims for relief. The trial court summarily
dismissed the petition and Carpenter now seeks review. We have
jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).

¶3            Carpenter presents a number of claims of ineffective
assistance of counsel. To state a colorable 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).
To show prejudice, 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.

¶4            Carpenter first argues his trial counsel was ineffective when
she failed to call lay and expert witnesses to testify at trial. Because
Carpenter did not provide affidavits from the witnesses containing the
testimony they would have provided, Carpenter has failed to present a
colorable claim.1 State v. Borbon, 146 Ariz. 392, 399 (1985). Carpenter also

1     Carpenter conceded in the reply he filed below that he did not know
what testimony any "banking experts" could have provided.



                                      2
                          STATE v. CARPENTER
                           Decision of the Court

argues his trial counsel was ineffective when she failed to investigate other
"mortgage elimination" or "mortgage abatement" programs to show they
were similar to the "programs" that led to Carpenter's convictions.
Carpenter has again failed to present a colorable claim for relief because he
does not identify the programs counsel should have investigated, what
information counsel could have obtained had she investigated the
unidentified programs or how that information would have benefitted his
defense.

¶5             Carpenter next argues his trial counsel was ineffective when
she failed or refused to offer into evidence documents Carpenter provided
to her. Carpenter claims the documents would have shown why he
believed what he was doing was legal. The first document was a
promissory note that was not related to any transaction at issue. Carpenter
did not submit the document for inclusion in the record but referenced it
during trial and in his affidavit. The second document was a copy of a 1933
joint resolution of the Congress of the United States "To Suspend The Gold
Standard And Abrogate The Gold Clause." The third document was an
article from the internet by an unidentified author who, among other
things, instructs the reader that a court of law has no jurisdiction over the
reader if the caption of the case spells the reader's name in capital letters.

¶6             Carpenter has failed to present a colorable claim for relief.
The reasonableness of counsel's actions may be determined by the
information supplied to counsel by the defendant. Strickland, 466 U.S. at
691. A review of the documents shows counsel's failure and/or refusal to
offer the documents into evidence was a sound strategic choice that did not
fall below objectively reasonable standards.2 Strategic choices of counsel
“are virtually unchallengeable.” Id. at 690-691. Carpenter has also failed to
present a colorable claim because he has failed to demonstrate these
documents had any relevance to his defense or his case in general or that
there is a reasonable probability their admission would have changed the
outcome of the proceeding.

¶7             Carpenter also claims his trial counsel was ineffective when
she failed to object to the testimony of an FBI agent who mentioned that
during his investigation he identified four other properties in various stages
of Carpenter's mortgage abatement/elimination program. Carpenter did
not complete the "program" for those properties and they were not the
subject of criminal charges. Carpenter claims counsel should have objected,

2      The trial court noted it would exclude the promissory note as
irrelevant if Carpenter offered it into evidence.


                                      3
                          STATE v. CARPENTER
                           Decision of the Court

however, because the reference to those four other properties caused the
jury to be prejudiced against Carpenter. Carpenter has failed to present a
colorable claim for relief because he failed to show the reference prejudiced
him. First, the trial court instructed the jury that the only transactions at
issue were the five charged transactions. "Juries are presumed to follow
their instructions." State v. Dunlap, 187 Ariz. 441, 461 (App. 1996). Second,
Carpenter never denied he persuaded people to participate in his program
to abate or eliminate their mortgages and never denied that he otherwise
engaged in the conduct and activities charged. As Carpenter conceded in
his petition below, the only issue at trial was whether Carpenter knew what
he was doing was illegal. A brief reference to other properties participating
in a program(s) Carpenter freely admits he operated and which the jury
knew were not the subject of any criminal charges did not prejudice
Carpenter.

¶8            Carpenter next contends his trial counsel was ineffective
when she failed to adequately explain the court's "parameters" regarding
what Carpenter could and could not say in his testimony. Carpenter has
again failed to present a colorable claim. Carpenter does not explain "the
parameters" the court put in place, his interpretation of the court's
parameters, how his interpretation of the court's parameters was incorrect,
how his alleged failure to understand the court's parameters prejudiced
him, what further testimony he wanted to give but did not or could not, nor
does he explain what more counsel should have explained about the court's
parameters. Further, the record shows the trial court more than adequately
explained the court's parameters to Carpenter.

¶9            Carpenter also argues counsel was ineffective when she failed
to move for a mistrial when the trial court commented on the evidence;
when she failed to object to a question about how Carpenter had previously
filed fraudulent documents and when she failed to object to questions that
referenced Carpenter's religion. We deny relief on these issues as well. We
determined on direct appeal that the court's comments at issue were not an
impermissible comment on the evidence. Carpenter at 7, ¶ 9. We further
determined that no error arose from the prosecutor's reference to how
Carpenter had previously filed fraudulent documents. Id. at 9, ¶ 13.
Regarding questions about religion, Carpenter used religion to help
persuade his victims to participate in his program, which he "backed [ ] up
with scripture." As one witness testified, Carpenter mentioned God "a lot"
when he persuaded the victim's to participate in his program. Therefore,
Carpenter's use of religion was relevant. For these reasons, counsel's failure
to move for a mistrial and/or object in these three instances did not fall
below objectively reasonable standards.


                                      4
                           STATE v. CARPENTER
                            Decision of the Court

¶10            Carpenter also contends his appellate counsel was ineffective.
Carpenter argues appellate counsel was too busy to devote enough time to
Carpenter's case and failed to raise a "possible" jurisdiction issue on appeal.
Carpenter has failed to present a colorable claim for relief because he does
not identify the "possible" jurisdiction issue counsel should have raised and
does not identify any other issue or argument counsel failed to present on
appeal.

¶11            Finally, Carpenter argues the trial court erred when it failed
to designate as a misdemeanor a prior conviction in a 2003 case. We deny
review because Carpenter did not raise this issue as part of the Rule 32
proceedings below. Carpenter raised this issue in a "Motion for Correction
of Error" he filed pursuant to Rule 24.4 after the court dismissed his petition
for post-conviction relief. A petition for review from the denial of post-
conviction relief may not present issues not first presented to the trial court
in the petition for post-conviction relief. State v. Ramirez, 126 Ariz. 464, 467
(App. 1980); State v. Wagstaff, 161 Ariz. 66, 71 (App. 1988); State v. Bortz, 169
Ariz. 575, 577 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii). Further, if
Carpenter wishes to raise this issue in a post-conviction relief proceeding,
he must do so in a timely petition for post-conviction relief in the 2003 case.

¶12           We grant review and deny relief.




                                     :ama




                                       5
