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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  JOE HERRERA RODRIGUEZ, Petitioner.

                         No. 1 CA-CR 14-0096 PRPC
                             FILED 8-4-2016


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 1988-002955
            The Honorable Robert L. Gottsfield, Retired Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney's Office, Phoenix
By Gerald R. Grant
Counsel for Respondent

Joe Herrera Rodriguez, Buckeye
Petitioner
                           STATE v. RODRIGUEZ
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Samuel A. Thumma
joined.


J O N E S, Judge:

¶1            Joe Herrera Rodriguez petitions for review of the trial court’s
denial of his petition for post-conviction relief, filed pursuant to Arizona
Rule of Criminal Procedure 32.1. We review a trial court’s ruling on a
petition for post-conviction relief for an abuse of discretion. State v. Kolman,
239 Ariz. 157, 161, ¶ 9 (2016). Finding no error, we grant review but deny
relief.

                 FACTS AND PROCEDURAL HISTORY

¶2             A jury convicted Rodriguez of two counts of kidnapping and
one count each of sexual conduct with a minor and attempted molestation
of a child. On May 19, 1989, the trial court sentenced Rodriguez to
consecutive and concurrent aggravated terms of imprisonment totaling
sixty-nine years. The convictions and sentences were affirmed on appeal.
State v. Rodriquez, 1 CA-CR 89-636 (Ariz. App. Feb. 5, 1991) (mem. decision).

¶3            In September 2012, Rodriguez commenced a proceeding for
post-conviction relief alleging his trial counsel was ineffective because he
failed to adequately advise Rodriguez about a plea offer made by the State
or explain the difference in sentencing under the plea offer and the
mandatory sentencing scheme if convicted at trial. The trial court held an
evidentiary hearing on the claim, at which Rodriguez, his trial counsel, and
the prosecutor who tried the case testified. After considering the evidence
presented, the court denied the petition for post-conviction relief, finding
Rodriguez failed to sustain his burden of establishing either that there was
a plea agreement his counsel did not advise him of, or that his counsel did
not explain the consequences he faced if he went to trial. This petition for
review followed. We have jurisdiction pursuant to Arizona Revised
Statutes section 12-120.21(A)(1) (2016) and Arizona Rule of Criminal
Procedure 32.9(c).




                                       2
                           STATE v. RODRIGUEZ
                            Decision of the Court

                               DISCUSSION

¶4             To obtain relief on a 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). Once the trial court finds a claim colorable and
orders an evidentiary hearing, the defendant has the burden of proving all
factual allegations by a preponderance of the evidence. Ariz. R. Crim. P.
32.8(c). After an evidentiary hearing, our review of the court’s factual
findings “is limited to a determination of whether those findings are clearly
erroneous.” State v. Sasak, 178 Ariz. 182, 186 (App. 1993). In reviewing the
findings, “we must view the facts in the light most favorable to sustaining
the lower court’s ruling, and we must resolve all reasonable inferences
against the defendant.” Id. When the trial court’s ruling is based on
substantial evidence — that which allows a reasonable person to reach the
same conclusion as the fact-finder — this court will affirm. Id.; Mealey v.
Arndt, 206 Ariz. 218, 221, ¶ 12 (App. 2003).

¶5              Here, Rodriguez’s trial counsel testified he had no specific
memory of any plea offers given the passage of time, but described his
normal practice in handling plea offers. The trial court specifically found
counsel’s testimony credible and there was no reason to believe
Rodriguez’s counsel did not go over any plea offer with Rodriguez as was
his normal practice in all cases or that he failed to inform Rodriguez about
the nature of the charges against him or the risks of going to trial. See State
v. Fritz, 157 Ariz. 139, 141 (App. 1988) (noting “[t]he trial court is the sole
arbitrator of the credibility of witnesses” in post-conviction relief
proceedings). And, although Rodriguez testified he was unable to accept a
twenty-one-year plea deal because of his counsel’s deficient performance,
the court found this testimony insufficient to establish the plea offer existed
in light of the prosecutor’s testimony that such an offer was highly unlikely
given Rodriguez’s status as a high-risk offender.

¶6            Because the testimony at the evidentiary hearing provided
substantial evidence to support the trial court’s findings that there had been
no plea offer of the type Rodriguez claims was made, or that his counsel
failed to properly advise him about any plea agreement that may have been
made or the consequences of going to trial, we have no basis to alter the
court’s ruling that Rodriguez failed to sustain his burden of proving he was
deprived of effective assistance of counsel.




                                       3
                     STATE v. RODRIGUEZ
                      Decision of the Court

                         CONCLUSION

¶7        We grant review of Rodriguez’s petition for review and deny
relief.




                             :AA




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