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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 EDGAR DANIEL CONTRERAS, Petitioner.

                          No. 1 CA-CR 16-0143 PRPC
                               FILED 10-17-2017


     Petition for Review from the Superior Court in Maricopa County
                          No. CR2014-116154-001
                   The Honorable Alfred M. Fenzel, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

Maricopa County Attorney's Office, Phoenix
By Arthur G. Hazelton, Jr.
Counsel for Respondent

Edgar Daniel Contreras, Tucson
Petitioner



                        MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.
                            STATE v. CONTRERAS
                             Decision of the Court

J O H N S E N, Judge:

¶1             Edgar Daniel Contreras petitions this court for review from the
dismissal of his petition for post-conviction relief, filed pursuant to Arizona
Rule of Criminal Procedure 32. We have considered the petition for review
and, for the reasons stated, grant review but deny relief.

¶2            Contreras pled guilty to conspiracy to commit possession of
dangerous drugs for sale. Pursuant to his plea agreement, the superior court
imposed a 10-year prison sentence. Contreras timely filed a notice of post-
conviction relief, claiming ineffective assistance of counsel ("IAC"), arguing
his lawyer was ineffective for failing to move to suppress evidence police
discovered during a warrantless search of Contreras's home. The superior
court summarily denied relief. This timely petition for review followed.

¶3              Contreras argues his conviction should be reversed or,
alternatively, that he is entitled to an evidentiary hearing. Contreras outlines
the circumstances of the search and argues the search violated his rights
under the Fourth Amendment to the United States Constitution and his
rights under the Arizona Constitution.

¶4             A Rule 32 petitioner is entitled to an evidentiary hearing if he
or she presents a colorable claim. State v. D'Ambrosio, 156 Ariz. 71, 73 (1988).
"The purpose of an evidentiary hearing in the Rule 32 context is to allow the
court to receive evidence, make factual determinations, and resolve material
issues of fact." State v. Gutierrez, 229 Ariz. 573, 579, ¶ 31 (2012). The superior
court, however, need not conduct an evidentiary hearing based on mere
generalizations and unsubstantiated claims of IAC. State v. Borbon, 146 Ariz.
392, 399 (1985).

¶5            To state a colorable claim of ineffective assistance, Contreras
was required to "offer some demonstration that the attorney's representation
fell below that of the prevailing objective standards . . . [and] some evidence
of a reasonable probability that, but for counsel's unprofessional errors, the
outcome of the [proceeding] would have been different." State v. Rosario, 195
Ariz. 264, 268, ¶ 23 (App. 1999); see also Ariz. R. Crim. P. 32.5 (requiring
petitioner to file "[a]ffidavits, records, or other evidence currently available
to the defendant supporting the allegations").

¶6            With his petition, Contreras filed an investigator's report,
created after a review of police reports, that the search was "questionable
since no exigent circumstances were expressed or evident at the time."
Responding to his petition, the State pointed out that, contrary to the
conclusion of the investigator, officers called to Contreras's home to
investigate a report of domestic violence watched through a window as
                                        2
                            STATE v. CONTRERAS
                             Decision of the Court

Contreras and a woman appeared to be trying to hide unknown items or
move them from one room to another. After Contreras ran from the home
and the woman came outside, the woman told officers that her two children,
ages two and seven months, remained in the home. In response to his
petition, the State argued that at that point, officers were justified in entering
the house to check on the welfare of the children and to confirm that no one
else remained at risk in the home. When they entered the home to check on
the children, they observed a strong smell of marijuana and saw contraband,
including marijuana, pills and many electronic items (and car tires) they
suspected were stolen. Under a couch cushion, they found a handgun where
they had seen the woman attempt to hide something. The State argued that
the officers' initial sweep of the residence was valid under the "emergency
aid" exception to the warrant requirement, based on the presence of the very
young children in the home and the possibility that the perpetrator of the
domestic violence still might be inside. See State v. Bennett, 237 Ariz. 356, 358-
59, ¶ 9 (App. 2015). The State also argued that the inevitable discovery
doctrine applied because a preponderance of the evidence would establish
that a lawful warrant could have been obtained based on what officers had
seen through the window and their discovery of methamphetamine in a
hoodie that Contreras left behind in the yard when he dashed away. See State
v. Davolt, 207 Ariz. 191, 204-05, ¶¶ 35-38 (2004).

¶7            Based on the evidence in the record, the superior court did not
abuse its discretion in summarily denying relief to Contreras. See State v.
Febles, 210 Ariz. 589, 595, ¶ 18 (App. 2005) (to raise colorable claim and avoid
summary dismissal of petition, defendant must establish, inter alia, counsel's
performance was objectively unreasonable based on applicable professional
standards); State v. Donald, 198 Ariz. 406, 414, ¶ 21 (App. 2000) (to warrant
evidentiary hearing, Rule 32 claim "must consist of more than conclusory
assertions").

¶8            For these reasons, we grant review but deny relief.




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



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