                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                     STATE OF ARIZONA, Respondent,

                                        v.

                     MAX RAMIRO GARCIA, Petitioner.

                         No. 1 CA-CR 13-0083 PRPC
                             FILED 07-24-2014


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2009-145409-001
                The Honorable Pamela H. Svoboda, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Susan L. Luder
Counsel for Respondent

Max Ramiro Garcia, Douglas
Petitioner Pro Se



                       MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Randall M. Howe joined.
                             STATE v. GARCIA
                            Decision of the Court

K E S S L E R, Judge:

¶1           Petitioner Max Ramiro Garcia petitions this Court to review
the dismissal of his petition for post-conviction relief. The Court has
considered the petition for review and, for the reasons stated, grants
review and denies relief.

¶2              A jury convicted Garcia of one count of negligent homicide
(“Count 1”), one count of endangerment (“Count 2”), and one count of
leaving the scene of a fatal injury accident (“Count 3”). The jury found
Count 1 and 2 were dangerous offenses. As to Count 3, the jury also
found the State failed to prove Garcia caused the accident. The trial court
sentenced Garcia to an aggregate term of nine and one-half years’
imprisonment and this Court affirmed his convictions and sentences on
direct appeal. State v. Garcia, 1 CA-CR 10-0554, 2011 WL 4575020 (Ariz.
App. Oct. 4, 2011). Garcia then 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 Garcia now seeks review. We have
jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).

¶3            We review the trial court’s decision on whether a defendant
has presented a colorable claim for post-conviction relief on an abuse of
discretion standard. State v. Krum, 183 Ariz. 288, 293, 903 P.2d 596, 601
(1995). We may affirm the decision of a trial court on any basis supported
by the record. State v. Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 809
(1987).

¶4             It is the appellant’s duty to provide evidence in support of
any legal arguments made. Ariz. R. Crim. P. 31.13(c)(1)(vi), 32.5. Further,
a petition for review may not merely incorporate by reference any issue or
argument, but rather must set forth specific claims, present sufficient
argument supported by legal authority, and include citation to the record.
See State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991); Ariz. R.
Crim. P. 32.5, 32.9(c). A petitioner must “strictly comply” with Rule 32 to
be entitled to relief. Canion v. Cole, 210 Ariz. 598, 600, ¶ 11, 115 P.3d 1261,
1263 (2005). Therefore, we will not consider Garcia’s arguments to the
extent he attempted to incorporate by reference any portion of the record
into his petition for review. We address only those issues for which he
sets forth specific claims supported by sufficient argument and citation to
both legal authority and the record.

¶5            Garcia argues his trial and appellate counsel were
ineffective. To state a colorable claim of ineffective assistance of counsel, a


                                      2
                            STATE v. GARCIA
                           Decision of the Court

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.

I.    Ineffective Trial Counsel

¶6            Garcia argues his trial counsel was ineffective when he failed
to assert Garcia’s right to a preliminary hearing pursuant to Arizona Rule
of Criminal Procedure 5.1(a) and when he failed to take steps to have
Garcia present evidence at a preliminary hearing or to the grand jury.

¶7              We deny relief on this issue. First, Garcia had no right to a
preliminary hearing pursuant to Rule 5.1(a) because the State ultimately
charged Garcia through an indictment, not a complaint. See Ariz. R. Crim.
P. 5.1(a), 5.3(a). Second, Garcia does not allege he ever asked his counsel
to seek the opportunity to have Garcia appear before the grand jury,
although he had the right to seek such an opportunity pursuant to Rule
12.6. Even if counsel should have asked to have Garcia appear before the
grand jury, Garcia does not show that any testimony he would have given
would have led to the grand jury refusing to indict him.

¶8             Garcia argues that the Court should grant relief because he
was unable to submit a photograph into evidence, prevented from
testifying on his own behalf, and not allowed other witnesses to testify on
his behalf. However, the trial court found Garcia’s testimony and the
other witnesses’ testimony to be inadmissible.            Additionally, the
photograph would only be a valid claim for post-conviction relief under
Rule 32.1 if it was newly discovered material evidence discovered after
trial. Ariz. R. Crim. P. 32.1(e). Garcia does not describe this evidence, but
since it is from the date of the arrest, we conclude it was not discovered
after trial and his argument is therefore precluded.

¶9           Garcia next argues his trial counsel was ineffective when he
advised Garcia not to testify at trial. A defendant must prove by a
preponderance of the evidence that “(1) counsel lacked minimal
competence as determined by prevailing professional norms, and (2)
counsel’s deficient performance prejudiced the defense.” State v. Henry,
176 Ariz. 569, 585, 863 P.2d 861, 877 (1993). Garcia does not provide
reasons or evidence of how this behavior fell below the objectively
reasonable standard and does not argue that any action or inaction of



                                     3
                            STATE v. GARCIA
                           Decision of the Court

counsel prevented him from testifying. A reviewing court should give
deference to tactical decisions made by counsel and should refrain from
evaluating counsel’s performance in hindsight. State v. Nash, 143 Ariz.
392, 398, 694 P.2d 222, 228 (1985) (quoting Strickland, 466 U.S. at 689). For
these reasons, Garcia failed to state a colorable claim for relief.

II.   Ineffective Appellate Counsel

¶10           Garcia argues his appellate counsel was ineffective when she
failed to present an issue regarding jury selection pursuant to Batson v.
Kentucky, 476 U.S. 79 (1986). However, Garcia does not provide legal
arguments or factual evidence in support of this assertion.

¶11          Garcia also argues appellate counsel was ineffective when
she failed to present an issue regarding the jury’s determination that
Count 1 and 2 were dangerous. Garcia argues the offenses could not be
dangerous because the jury did not find he acted intentionally.

¶12            A dangerous offense is defined as any offense involving a
deadly weapon or dangerous instrument, or “the intentional or knowing
infliction of serious physical injury on another person.” Ariz. Rev. Stat.
(“A.R.S.”) § 13-105(13) (Supp. 2013) (emphasis added).1 A dangerous
instrument can be anything that is used to cause death or serious physical
injury. A.R.S. § 13-105(12) (Supp. 2013). When use of a car is not an
element of the underlying offense, a car may be considered a dangerous
instrument. State v. Orduno, 159 Ariz. 564, 566, 769 P.2d 1010, 1012 (1989);
State v. Howard, 163 Ariz. 47, 50, 785 P.2d 1235, 1238 (App. 1989).
Therefore, the jury could find that the offenses were dangerous even
though they found Garcia did not act intentionally.

¶13           Finally, Garcia argues his appellate counsel should have
presented an issue regarding the trial court’s failure to define
“intentional” for the jury. None of the offenses Garcia was convicted of
required he act intentionally. See A.R.S. §§ 13-1102(A) (2010) (Count 1,
negligent homicide), 13-1201 (2010) (Count 2, endangerment), 28-661(B)
(Supp. 2013) (Count 3, leaving the scene of a fatal accident), 13-105(13)
(defining “dangerous offense”), 13-704(A) (Supp. 2013) (listing sentences
for dangerous offenders). Within this final argument, Garcia argues the
verdicts are inconsistent since the jury found on Count 3 that he did not


1We cite the current version of the applicable statute when no revisions
material to this decision have since occurred.



                                      4
                             STATE v. GARCIA
                            Decision of the Court

cause the accident. However, “there is no requirement that a jury’s
verdicts on different counts be consistent.” State v. Barr, 183 Ariz. 434, 439,
904 P.2d 1258, 1263 (App. 1995). Therefore, we deny relief on this issue.

                              CONCLUSION

¶14           For the foregoing reasons, we grant review and deny relief.




                                  :gsh




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