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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    JOSE RAMIREZ PORRAS, Petitioner.

                         No. 1 CA-CR 13-0558 PRPC
                              FILED 3-10-2015


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2010-117851-002
                    Commissioner Patricia Ann Starr

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorneys’ Office, Phoenix
By Karen Kemper
Counsel for Respondent

Jose Ramirez Porras, Buckeye
Petitioner



                       MEMORANDUM DECISION

Presiding Judge John C. Gemmill delivered the decision of the Court, in
which Judge Kenton D. Jones and Judge Donn Kessler joined
                              STATE v. PORRAS
                             Decision of the Court


G E M M I L L, Judge:

¶1           Petitioner Jose Ramirez Porras 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            Porras pled guilty to kidnapping and the trial court sentenced
him to nineteen years’ imprisonment. Porras filed a petition for post-
conviction relief of-right after his counsel found no colorable claims for
relief. The trial court summarily dismissed the petition and Porras now
seeks review. We have jurisdiction pursuant to Arizona Rule of Criminal
Procedure 32.9(c).

¶3             Porras presents several claims of ineffective assistance of both
of his trial counsel.1 To state a colorable 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, 687-88
(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.

¶4           Porras challenged his competency more than once during the
proceedings. Each time he did so, mental health experts found him
competent to stand trial. The majority of the experts also found he was
malingering. In the context of the competency issue, Porras argues his trial
counsel were ineffective when they failed to inform the trial court that at
least one of the experts determined his competency to stand trial was
dependent on medication; when they failed to object to the determinations
that Porras was competent; when they failed to investigate Porras’s mental
health history; when they failed to object to a specific expert the court
appointed to evaluate Porras’s competency; and when they failed to make
sure the experts who evaluated him received a copy of a 2009 competency
evaluation for the Department of Economic Security that found Porras was
not competent to manage benefit payments from the Department.

¶5            We deny relief on these issues. The trial court was well aware
that Porras’s competency was medication-dependent and the court noted
so in a minute entry. Regarding the failure to object to the determinations


1   Porras changed counsel after he pled guilty.


                                       2
                             STATE v. PORRAS
                            Decision of the Court

that Porras was competent, counsel challenged Porras’s competency and all
of the mental health experts who evaluated him found him competent each
time he did so. There was nothing more for counsel to do and Porras offers
no persuasive evidence that he was not competent at all relevant times.
Regarding the failure to investigate Porras’s mental health history, Porras
offers nothing but speculation and bald assertions that counsel failed to
investigate sufficiently and he does not identify what benefit additional
investigation would have provided. Regarding the failure to object to the
court’s use of a specific expert, Porras offers nothing to suggest that expert
was not qualified to evaluate Porras’s competency in an objective, fair and
unbiased fashion or that the expert did not ultimately do so. Finally, the
2009 report for the Department of Economic Security evaluating Porras’s
competency to manage benefit payments was of very limited relevance, if
any, to determinations of competency to stand trial months or years later.

¶6            Porras further argues his second counsel was ineffective
when he failed to object to the trial court’s determination that the offense
was dangerous. Porras offers no explanation for why the offense, which
involved the use of a firearm, was not dangerous. He has, therefore, failed
to present a colorable claim for relief. Finally Porras argues the State
breached the plea agreement during the sentencing proceedings when it
referenced Porras’s attempt to smuggle contraband into jail. He also argues
his counsel was ineffective when he failed to object to this reference. We
deny relief on these issues as well. The plea agreement provided the State
would not “file charges of promoting prison contraband…” based on the
incident. The State did not file charges and never agreed to avoid
referencing the incident. At sentencing, the State referenced the incident as
one of many examples of Porras’s inability to adhere to rules. Further, there
is nothing in the record to suggest the reference played any role in the
court’s determination of the appropriate sentence.

¶7              While the petition for review presents additional issues,
Porras did not raise those issues in the petition for post-conviction relief he
filed in the trial court. A petition for review may not present issues not first
presented to the trial court. State v. Ramirez, 126 Ariz. 464, 467, 616 P.2d 924,
927 (App. 1980); State v. Wagstaff, 161 Ariz. 66, 71, 775 P.2d 1130, 1135 (App.
1988); State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991); Ariz.
R. Crim. P. 32.9(c)(1)(ii).




                                       3
                  STATE v. PORRAS
                 Decision of the Court

¶8   We grant review and deny relief.




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