                          NOTICE: NOT FOR PUBLICATION.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.

                     ISMAEL MAYORQUIN, Petitioner.

                         No. 1 CA-CR 13-0134 PRPC
                               FILED 05-29-2014


     Petition for Review from the Superior Court in Maricopa County
                          No. CR2007-170264-001
               Honorable Steven P. Lynch, Judge Pro Tempore

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By E. Catherine Leisch
Counsel for Respondent

Ismael Mayorquin, Florence
Petitioner In Propria Persona
                        STATE v. MAYORQUIN
                         Decision of the Court



                     MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.


B R O W N, Judge:

¶1          Petitioner Ismael Mayorquin 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           A jury convicted Mayorquin of kidnapping and found the
offense was a dangerous crime against children. The trial court sentenced
him to twenty-four years’ imprisonment and we affirmed his conviction
and sentence on direct appeal. State v. Mayorquin, 1 CA-CR 09-0190, 2010
WL 363784 (Ariz. App. Feb. 2, 2010) (mem. decision). Mayorquin 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 Mayorquin now seeks review. We have jurisdiction pursuant
to Arizona Rule of Criminal Procedure 32.9(c).

¶3            The petition for review properly presents three issues.
Mayorquin argues the trial court erred when it considered prior felony
convictions more than ten years old as an aggravating factor for
sentencing purposes and that the prosecutor tainted the jury when she
referred to Mayorquin in her opening statement as a “predator” who
“waited, watched, calculated and set the time.” Mayorquin further argues
his appellate counsel was ineffective when he failed to raise these two
issues on direct appeal.

¶4            Outside the context of ineffective assistance of counsel,
Mayorquin could have raised his claims regarding the prosecutor’s
opening statement and the court's consideration of aggravating factors on
direct appeal. 1 Any claim a defendant could have raised on direct appeal


1      Mayorquin’s appellate counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967).       We invited Mayorquin to file a
supplemental brief in propria persona, but he failed to do so.



                                   2
                          STATE v. MAYORQUIN
                           Decision of the Court

is precluded. Ariz. R. Crim. P. 32.2(a). None of the exceptions under Rule
32.2(b) apply here.

¶5             Regarding the assistance of appellate counsel, Mayorquin
has failed to present a colorable claim of ineffective assistance because he
failed to show his appellate counsel’s performance fell below objectively
reasonable standards and that any allegedly deficient performance
prejudiced him, both of which are necessary to present a colorable claim
of ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 687
(1984). First, the prosecutor’s comment inferring that Mayorquin is a
“predator” was within permissible boundaries. See State v. Burruell, 98
Ariz. 37, 40, 401 P.2d 733, 736 (1965) (explaining that “considerable
latitude” should be given to a prosecutor in opening statements).
Regarding the court’s consideration of felony convictions more than ten
years old as an aggravating factor, a trial court may consider prior felony
convictions more than ten years old as aggravating factors for sentencing
purposes. State v. Romero, 173 Ariz. 242, 243, 841 P.2d 1050, 1051 (App.
1992). The language in A.R.S. § 13-702(C)(11) on which Mayorquin relies
requires the trial court to consider any felony conviction within the
preceding ten years as an aggravating factor for sentencing purposes. It
does not prohibit the court from considering prior felony convictions more
than ten years old. Romero, 173 Ariz. at 243, 841 P.2d at 1051 (addressing
the identical language in the former A.R.S. § 13-702(D)(11)). Further, the
trial court addressed Mayorquin’s prior convictions in terms of his
“criminal history[.]” A trial court may consider a defendant’s criminal
history as an aggravating factor for sentencing purposes. State v. Williams,
134 Ariz. 411, 413-414, 656 P.2d 1272, 1274-1275 (App. 1982). For these
reasons, Mayorquin’s appellate counsel was not ineffective when he failed
to raise these issues on appeal and Mayorquin suffered no prejudice from
counsel’s inaction.

¶6              While the petition for review presents additional issues,
Mayorquin did not raise those issues in the petition for post-conviction
relief he filed below. A petition for review may not present issues not first
presented to the trial court. State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236,
238 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).

¶7            Based on the foregoing, we grant review and deny relief.




                                     :gsh




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