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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   JESUS MANUEL BRISENO, Petitioner.

                         No. 1 CA-CR 16-0536 PRPC
                             FILED 8-3-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2009-158515-001
              The Honorable Pamela Hearn Svoboda, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Andrea L. Kever
Counsel for Respondent

The Nolan Law Firm, PLLC, Mesa
By Cari McConeghy Nolan, Todd E. Nolan
Counsel for Petitioner
                            STATE v. BRISENO
                            Decision of the Court



                       MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which Chief
Judge Samuel A. Thumma and Judge Lawrence F. Winthrop joined.


B E E N E, Judge:

¶1             Jesus Manuel Briseno 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             In 2011, a jury convicted Briseno of two counts of
manslaughter, five counts of aggravated assault, and one count of
endangerment arising from an automobile collision in which two persons
died and six others were injured. The superior court sentenced Briseno to
prison on all counts for a total of 30.75 years. This court affirmed the
convictions and sentences in State v. Briseno, 1 CA-CR 11-0665, 2013 WL
3516536 (Ariz. App. Jul. 9, 2013) (mem. decision). Although the facts are
fully set forth in that decision, we set forth facts material to this proceeding.

¶3             Briseno ran a red light and collided with oncoming traffic,
resulting in six injuries and two deaths. After the collision, Briseno
admitted that he was the driver. However, after learning of the fatalities,
he denied driving the vehicle. Later, during a video recorded confession,
he “came clean” and admitted that he was the driver.1 DNA from a
bloodstain on the driver’s side airbag did not match Briseno’s DNA. After
the collision, all three occupants in Briseno’s vehicle, including Briseno,
were injured and possibly bleeding. The occupants exited through the
driver’s side door. At trial, the State introduced “occupant kinematics”2
evidence to support its case that Briseno was the driver. The State had not
previously disclosed this evidence in violation of the discovery rules.



1      After his convictions, Briseno changed his story again. He told the
presentence report writer that he was not the driver. He said he had only
told police that he had been driving to protect a loved one.

2        In general, occupant kinematics refers to the predictable movement
of bodies and objects in a moving vehicle as a result of directional forces.
See, e.g., State v. Baltzell, 175 Ariz. 437, 441 (App. 1992).


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                            STATE v. BRISENO
                            Decision of the Court

¶4            Briseno filed a timely notice of post-conviction relief (PCR)
and a supporting petition. He raised claims of ineffective assistance of
counsel (IAC), and a claim of cruel and unusual punishment. Specifically,
he argued that counsel’s advice to reject a plea agreement and proceed to
trial when the state’s evidence was strong, and counsel’s untimely objection
at trial to the testimony regarding occupant kinematics, was deficient
performance which resulted in prejudice. He also argued that the
proportionality review of individual sentences as set forth in State v. Berger,
212 Ariz. 473 (2006), is inadequate because it fails to consider the
“cumulative impact” of consecutive sentences, thus denying him a
“fundamental right.” After the State filed its response, and Briseno his
reply, the superior court set an evidentiary hearing.

¶5              Briseno, his father, and Briseno’s trial counsel, Barry Handler,
testified at the hearing. Briseno testified that he knew whether to accept the
plea agreement was his decision, but that he had rejected the State’s plea
offer, which stipulated to a total prison sentence of 14 years, based on
counsel’s advice. He testified that counsel advised him not to take the plea
because DNA taken from the driver’s side airbag after the collision did not
match his DNA. He argued that the occupant kinematic evidence at trial
destroyed his defense that he was not the driver. Briseno testified that he
would have accepted the State’s plea deal had counsel advised him of the
occupant kinematic evidence prior to trial.

¶6            Counsel testified that Briseno decided to reject the plea
because it required a 14-year prison term, and Briseno did not believe that
he was at fault for the collision. Counsel testified that in his opinion the
case was not defensible, but that Briseno was adamant about not accepting
a plea agreement.

¶7             After the hearing, the parties filed written closing arguments.
The superior court noted that Briseno’s “argument has shifted since he filed
his Petition for Post-Conviction Relief on June 2, 2014. He initially argued
in his pleading that trial counsel [was ineffective because counsel] advised
him to reject the plea offer” and proceed to trial notwithstanding strong
evidence of his guilt. After the hearing, Briseno “seems to now argue that
the failure by his attorney to advise him of or to address the occupant
kinematics evidence, although it was raised for the first time by the State
during trial, resulted in Petitioner rejecting a favorable plea offer.”

¶8            The superior court did “not find Petitioner’s testimony
credible that he wanted to accept the plea, nor Petitioner and his father’s
testimony credible that Mr. Handler instructed Petitioner to reject the plea.”


                                       3
                            STATE v. BRISENO
                            Decision of the Court

As to counsel’s failure to discuss the occupant kinematics evidence with
Briseno before trial, the court found that trial counsel had not been
ineffective because he could not discuss with Briseno the issue of occupant
kinematics when it had not been disclosed prior to trial. The court denied
relief, and this petition for review followed.

¶9            Absent an abuse of discretion, this court will not disturb the
superior court’s ruling on a petition for post-conviction relief. State v.
Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). Briseno fails to show an abuse of
discretion.

¶10            The superior court noted that Briseno cited no authority for
the proposition that “a lawyer is ineffective if he learns of the State’s
evidence to be used against his client after the expiration of the plea and
during trial, nor is the Court aware of any such precedent.” The court found
that “the record is clear that trial counsel did not commit an unprofessional
error as he could not discuss with Petitioner the issue of occupant
kinematics when it was never disclosed pretrial by the State.” Briseno does
not present any persuasive argument or authority to establish that the court
abused its discretion, and we find none.

¶11              Acknowledging that the occupant kinematics evidence was
not disclosed prior to trial, Briseno now argues that counsel should have
anticipated the State’s use of occupant kinematics evidence at trial, and that
he should have discussed this evidence with Briseno before he decided to
reject the plea. Briseno argues that if counsel had done so, he would have
accepted the plea. This issue was not presented to the superior court, and
may not now be presented in the petition for review. See Ariz. R. Crim. P.
32.9(c)(1)(ii) (limiting the petition for review to “issues which were decided
by the trial court and which the defendant wishes to present to the appellate
court for review.”); see also State v. Vera, 235 Ariz. 571, 573-74, ¶ 8 (App.
2014) (citing State v. Ramirez, 126 Ariz. 464, 468 (App. 1980)). Even if this
issue had been raised, Briseno did not present any evidence to the superior
court that the failure to anticipate the State’s use of occupant kinematics
evidence at trial constituted ineffective assistance. The burden is on the
petitioner to show ineffective assistance of counsel, and the showing must
be that of a provable reality, not mere speculation. State v. Rosario, 195 Ariz.
264, 268, ¶ 23 (App. 1999).

¶12            As to the claims that counsel’s late objection to the occupant
kinematic evidence at trial was ineffective, and that the cumulative impact
of his sentences is cruel and unusual punishment, Briseno has waived these
issues by failing to argue them. It is not enough to incorporate by reference


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                           STATE v. BRISENO
                           Decision of the Court

any issue or argument. Petitioner must set forth the claim with record
references and argument. State v. Bortz, 169 Ariz. 575, 578 (App. 1991).

¶13          Even if the issues had been properly presented, Briseno
would not be entitled to relief.3 Briseno failed to demonstrate prejudice on
the IAC claim. He argues that had counsel filed a motion or timey objected,
the court might have precluded the evidence. This is mere speculation and
does not support the claim. Rosario, 195 Ariz. at 268, ¶ 23.

¶14           Finally, Briseno’s cruel and unusual punishment claim is
precluded because it could have been raised on direct appeal. Ariz. R.
Crim. P. 32.2(a)(3).

¶15           We grant review and deny relief.




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




3      To the extent the petition for review can be read to present Briseno’s
original IAC claim — that counsel’s advice to reject a plea and proceed to
trial notwithstanding the strength of the State’s case – the claim fails.
Counsel testified that he did not advise Briseno to reject the plea agreement.
He testified that it was Briseno’s decision not to accept the plea agreement.


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