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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  STEPHANIE ROSE RAMIREZ, Petitioner.

                          No. 1 CA-CR 14-0858 PRPC
                               FILED 3-28-2017


     Petition for Review from the Superior Court in Maricopa County
                          No. CR2010-006194-003
                  The Honorable Randall H. Warner, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

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

Stephanie Rose Ramirez, Goodyear
Petitioner



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Peter B. Swann and Judge Kent E. Cattani joined.
                            STATE v. RAMIREZ
                            Decision of the Court

K E S S L E R, Judge:

¶1           Stephanie Rose Ramirez petitions this Court to review the
superior court’s dismissal of her petition for post-conviction relief. After
considering the petition for review, we grant review but deny relief.

¶2            A jury found Ramirez guilty of second degree murder and
two counts of conspiracy to commit aggravated assault, all dangerous
offenses. The trial court imposed mitigated and concurrent terms of
imprisonment, the longest of which was twelve years for the murder
conviction. On direct appeal, Ramirez argued the trial court erred in
admitting evidence that her brother had been in prison. This Court rejected
that argument but vacated one of the conspiracy convictions due to double
jeopardy, and affirmed Ramirez’s remaining convictions and sentences.
State v. Ramirez, 1 CA-CR 11-0796, 2013 WL 1632145 (Ariz. App. April 16,
2013) (mem. decision).

¶3             Thereafter, Ramirez petitioned the trial court for post-
conviction relief (“PCR”) pursuant to Arizona Rule of Criminal Procedure
32 (“Rule 32”), alleging constitutional issues arising from the police
investigation, a purported warrantless search and seizure of her cell phone,
the State’s alleged reliance on perjured testimony at trial, and ineffective
assistance of counsel. The trial court dismissed the petition, finding that all
claims, except the ineffective assistance of counsel (IAC) claim, were
precluded by Rule 32.2(a) because they could have been raised in Ramirez’s
direct appeal. The court rejected the IAC claim because Ramirez could not
show that counsel’s performance fell below objectively reasonable
standards. The court further noted, “This court presided over the trial and
finds further that Defendant received a fair trial.” This timely petition for
review followed.

¶4            Ramirez argues she was entitled to post-conviction relief
based on ineffective assistance of trial and appellate counsel; the
inadequacy of the police investigation that led to her arrest and convictions;
the warrantless search and seizure of her phone; and the State’s knowing
reliance on “perjured” testimony at trial.

¶5            “We will not disturb a trial court’s ruling on a petition for
post-conviction relief absent a clear abuse of discretion.” State v. Swoopes,
216 Ariz. 390, 393, ¶ 4 (App. 2007).

¶6          As an initial matter, the only issue properly before us is
Ramirez’s IAC claim regarding her trial counsel. In her petition for PCR,



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                            STATE v. RAMIREZ
                            Decision of the Court

Ramirez did not raise an IAC claim with respect to appellate counsel; thus,
we do not consider the alleged insufficiency of appellate counsel. State v.
Wagstaff, 161 Ariz. 66, 69 (App. 1988); State v. Bortz, 169 Ariz. 575, 577 (App.
1991); Ariz. R. Crim. P. 32.9(c)(1)(ii). Additionally, as the superior court
correctly determined, Ramirez’s objections to the police investigation, the
search and seizure of her phone, and the purported perjury at trial could
have been raised in her direct appeal, and, therefore, were not a proper
basis for PCR relief. Ariz. R. Crim. P. 32.2(a).

¶7            To state a colorable IAC 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);
State v. Nash, 143 Ariz. 392, 397 (1985). If a defendant fails to make a
sufficient showing on either prong of the Strickland test, the court need not
determine whether the other prong was satisfied. State v. Salazar, 146 Ariz.
540, 541 (1985). The burden is on the petitioner seeking post-conviction
relief 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).

¶8             Ramirez offers no support for her claim regarding trial
counsel; she speculatively asserts, without referring to the record, that
counsel’s failure to create a “time line” of the events surrounding the
homicide amounted to ineffective assistance. She also speculates that trial
counsel ineffectively assisted her by failing to file motions in limine, or
object at trial, challenging (1) the inculpatory evidence police discovered
during the warrantless search of her cell phone and (2) the allegedly
perjured testimony. However, “[D]isagreements [over] trial strategy will
not support a claim of ineffective assistance of counsel, provided the
challenged conduct had some reasoned basis.” State v. Vickers, 180 Ariz. 521,
526 (1994).

¶9            Here, trial counsel’s apparent failure to challenge the
admissibility of the cell phone evidence or to impeach witnesses with prior
inconsistent statements were tactical decisions, and Ramirez does not meet
her burden to establish otherwise. Ramirez does not cite any portion of the
record supporting her premise that the phone search was conducted
without a lawful warrant; thus, she is unable to establish that a motion to
preclude evidence discovered on the phone would be successful. Nor does
Ramirez provide citations to the record that indicate counsel failed to
challenge “perjured” testimony, and she offers no factual basis from the
record or from affidavits to establish false testimony was, in fact, presented


                                       3
                            STATE v. RAMIREZ
                            Decision of the Court

at trial. See State v. Goswick, 142 Ariz. 582, 585 (1984) (in context of an IAC
claim, there is no sufficient factual basis to support an allegation based on
defendant’s self-serving affidavit when other affidavits from third-parties
are not presented). Finally, Ramirez does not sufficiently argue that the
result of her trial would have been different had trial counsel challenged
the evidence in the manner she posits. See Ariz. R. Crim. P. 32.9(c)(1)
(stating a petition for review shall contain the facts material to a
consideration of the issues presented, the reasons why the petition should
be granted, and specific references to the record.). As a result, Ramirez fails
to demonstrate ineffective assistance of counsel, let alone ineffective
assistance of counsel that prejudiced her. Consequently, the superior court
did not abuse its discretion in dismissing the ineffective assistance of
counsel claim. See State v. Borbon, 146 Ariz. 392, 399 (1985) (explaining a
trial court need not conduct an evidentiary hearing based on mere
generalizations and unsubstantiated claims of ineffective assistance of
counsel).

¶10           For the reasons stated, we grant review, but deny relief.




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




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