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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                RAYMOND JAMES MERCADO, Petitioner.

                         No. 1 CA-CR 13-0745 PRPC
                             FILED 4-14-2015


           Appeal from the Superior Court in Maricopa County
                      No. CR2010-125243-001DT
               The Honorable Susan M. Brnovich, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Raymond James Mercado, Buckeye
Petitioner
                           STATE v. MERCADO
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined.



B R O W N, Judge:

¶1            Raymond James Mercado 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 Mercado of first degree burglary and four
counts of kidnapping. The trial court sentenced Mercado to an aggregate
term of twenty-one years imprisonment and we affirmed his convictions
and sentences on direct appeal. State v. Mercado, 1 CA-CR 11-0245, 2011 WL
6747417 (Ariz. App. Dec. 22, 2011) (mem. decision). Mercado 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
Mercado now seeks review.

¶3             Mercado argues the trial court erred when it ordered two of
his sentences to run consecutively to the other sentences. He also presents
issues regarding the legality and validity of the victims’ identification of
him at trial and whether the prosecutor coached the victims. Both of these
issues are precluded. We addressed the sentencing issue on direct appeal
and found no error. Mercado at *6, ¶ 11. Mercado could have raised the
identification issues on direct appeal. Any claim a defendant raised or
could have raised on direct appeal is precluded. Ariz. R. Crim. P. 32.2(a)(1).

¶4             Mercado also presents several claims of ineffective assistance
by his trial counsel. To state a colorable claim of ineffective assistance of
counsel, a defendant must show counsel’s performance fell below
objectively reasonable standards and the deficient performance prejudiced
the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). To
establish prejudice, a defendant must demonstrate there is a “reasonable
probability that but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.




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                           STATE v. MERCADO
                           Decision of the Court

¶5             Mercado argues his counsel was ineffective for failing to
object to consecutive sentences. Because we found no error on direct appeal
regarding the imposition of consecutive sentences, Mercado has failed to
present a colorable claim of ineffective assistance on that basis. Mercado
also argues his counsel was ineffective when counsel failed to challenge the
legality and validity of the victims’ identifications of Mercado at trial.
Mercado has failed to present a colorable claim for relief because Mercado
concedes he was at the scene with his accomplice when the incident
occurred. He offers nothing to suggest that his identity was otherwise at
issue at any time.1

¶6            Finally, Mercado argues his counsel was ineffective when
counsel failed to move to suppress statements Mercado made to law
enforcement officers. Mercado has failed to present a colorable claim for
relief because he does not identify the statements at issue. Furthermore, he
fails to explain when or specifically to whom he made the statements,
whether the court admitted them at trial, and why counsel should have
sought to suppress them. Mercado merely suggests that the statements
were “involuntary.”

¶7             If Mercado meant to refer to statements he made to law
enforcement officers at the scene before officers read him his Miranda2
rights, he also failed to present a colorable claim of ineffective assistance
because we found no error on direct appeal regarding the admission of
those statements. Mercado at *10, ¶ 19. If Mercado intended to refer to post-
Miranda statements he made, he similarly failed to present a colorable claim
of ineffective assistance because the post-Miranda admissions we identified

1      Identity was never an issue in this case. Mercado remained inside
the residence with the victims until police ordered him to come out.
Mercado at *3, ¶ 4. Mercado’s primary complaint about the identifications
is that all the victims claimed they did not know Mercado prior to the
incident, yet they allegedly all knew his name and/or referred to him by
name at trial. The victims’ knowledge of Mercado’s name by the time of
trial does not, as claimed by Mercado, suggest that the prosecutor
improperly coached the victims nor does it otherwise raise any question
about the validity of their identification of Mercado as one of the two people
who committed the offenses. Mercado offers nothing to suggest the victims
falsely claimed to know him prior to the incident, or that they identified
Mercado for any reason other than they simply recognized him as one of
the perpetrators.

2      Miranda v. Arizona, 384 U.S. 436 (1966)


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                            STATE v. MERCADO
                            Decision of the Court

on direct appeal were cumulative to his pre-Miranda admissions. Mercado
at *3-4, ¶¶ 4-6. In both his pre- and post-Miranda statements, Mercado
admitted he and his accomplice went to the residence to rob the people
inside. Id. Therefore, even if counsel had successfully excluded the post-
Miranda admissions, the jury would still have heard Mercado’s pre-Miranda
admissions.

¶8             While the petition for review presents additional issues,
Mercado 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. 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).

¶9            Based on the foregoing, review is granted and relief is denied.




                                   :ama




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