                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS PRECEDENT IAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
             ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                     STATE OF ARIZONA, Respondent,

                                         v.

                     JUAN ALBERTO CRUZ, Petitioner.

                         No. 1 CA-CR 13-0604 PRPC
                             FILED 2-12-2015


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2008-007096-001
                 The Honorable Paul J. McMurdie, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Juan Alberto Cruz, Florence
Petitioner


                       MEMORANDUM DECISION

Presiding Judge John C. Gemmill, Judge Kenton D. Jones, and Judge Donn
Kessler delivered the following decision.
                              STATE v. CRUZ
                            Decision of the Court

PER CURIAM:

¶1           Petitioner Juan Alberto Cruz petitions this Court for review
of 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             Cruz pleaded guilty to attempted first degree murder of a
fellow prison inmate, and the trial court sentenced him to an aggravated
term of twelve years’ imprisonment, to run consecutively to his current
prison sentence. Cruz filed a timely petition for post-conviction relief,
which the trial court summarily dismissed. In its consideration of Cruz’s
petition for review, this Court denied relief in part, granted relief in part,
and remanded for an evidentiary hearing on Cruz’s claims of ineffective
assistance of trial counsel. State v. Cruz, 2 CA-CR 12-0322 PR (Ariz. App.
Oct. 10, 2012) (mem. decision). On remand, the trial court held an
evidentiary hearing and denied Cruz’s petition for post-conviction relief.
Cruz now seeks review. We have jurisdiction pursuant to Arizona Rule of
Criminal Procedure 32.9(c).

¶3            The petition for review properly presents two issues. First,
Cruz argues his counsel was ineffective when he allegedly told and/or
otherwise led Cruz to believe he would receive concurrent sentences,
despite the plea agreement expressly stating there was no agreement as to
whether the sentence would run concurrently with, or consecutively to, the
prison sentence Cruz was already serving. Cruz further argues his counsel
was ineffective in allegedly telling Cruz he would get presentence
incarceration credit when Cruz was already in prison when he committed
the offense.

¶4            Whether to grant or deny post-conviction relief pursuant to
Rule 32 is within the trial court’s discretion. State v. Schrock, 149 Ariz. 433,
441, 719 P.2d 1049, 1057 (1986) (citing State v. Adamson, 136 Ariz. 250, 265,
665 P.2d 972, 987 (1983)). To establish 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.

¶5          We deny relief.   Cruz’s trial counsel testified at the
evidentiary hearing he advised Cruz, just as provided in the plea


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                              STATE v. CRUZ
                            Decision of the Court

agreement, that there was no agreement as to whether the sentence would
be concurrent with, or consecutive to, his current term of imprisonment.
Counsel further testified he said nothing to Cruz to suggest the court would
necessarily impose a concurrent sentence, nor anything to suggest even a
realistic chance the court would impose a concurrent sentence. Finally,
counsel testified he explained to Cruz he would receive no credit for his
presentence incarceration if the court imposed a consecutive sentence.
While Cruz contested his counsel’s testimony, the trial court was free to
reject this testimony as the determination of the credibility of witnesses at
an evidentiary hearing in a post-conviction relief proceeding rests in its sole
discretion. State v. Fritz, 157 Ariz. 139, 141, 755 P.2d 444, 446 (App. 1988)
(“The trial court is the sole arbitrator of the credibility of witnesses.”).

¶6               While the petition for review presents additional issues, those
issues were not before the trial court on remand. We may not consider
issues not first presented to and considered by the trial court. See, e.g., State
v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991); State v. Wagstaff,
161 Ariz. 66, 71, 775 P.2d 1130, 1135 (App. 1988); see also Ariz. R. Crim. P.
32.9(c)(1)(ii).1

¶7            We therefore grant review and deny relief.




                                 :ama




1      If Cruz wished to seek further review of those issues for which this
Court denied relief in 2012, he was required to file a timely petition for
review of those issues with the Arizona Supreme Court. Ariz. R. Crim. P.
31.19(a), 32.9(g).


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