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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     ANN MARIE BENJAMIN, Petitioner.

                          No. 1 CA-CR 16-0357 PRPC
                               FILED 4-12-2018


      Petition for Review from the Superior Court in Yavapai County
                          No. P1300CR201400984
                    The Honorable Tina R. Ainley, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

Yavapai County Attorney’s Office, Prescott
By Jarrod B. Long
Counsel for Respondent

Ann Marie Benjamin, Prescott
Petitioner



                        MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Paul J. McMurdie and Chief Judge Samuel A. Thumma joined.
                           STATE v. BENJAMIN
                           Decision of the Court

S W A N N, Judge:

¶1            Ann Marie Benjamin petitions for review from the summary
dismissal of her of-right petition for post-conviction relief. For reasons that
follow, we grant review but deny relief.

¶2          Benjamin pled guilty to aggravated harassment, a class 5
felony and domestic violence offense, with one historical prior felony
conviction. The trial court sentenced her as a repetitive offender to a
presumptive 2.25-year term of imprisonment.

¶3           Benjamin filed a timely notice of post-conviction relief.
Appointed counsel filed a notice of completion of review stating counsel
was unable to find any colorable claims. Benjamin filed a pro per petition
for post-conviction relief raising claims of ineffective assistance of counsel
and involuntary plea. The trial court summarily dismissed the petition,
ruling Benjamin failed to state a colorable claim for relief. This petition for
review followed.

¶4            On review, Benjamin argues the trial court erred in dismissing
her petition for post-conviction relief based on a finding that she failed to
state a colorable claim for relief. Absent an abuse of discretion or error of
law, this court will not disturb a trial court’s ruling on a petition for post-
conviction relief. State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006).

¶5            Summary dismissal of a petition for post-conviction relief is
appropriate “[i]f . . . the court determines that no . . . claim presents a
material issue of fact or law that would entitle the defendant to relief under
[Ariz. R. Crim. P. 32].” Ariz. R. Crim. P. 32.6(d)(1). To be entitled to an
evidentiary hearing, a petitioner must present a colorable claim. State v.
Krum, 183 Ariz. 288, 292 (1995). A colorable claim is one that, if the
allegations are true, would probably have changed the outcome. State v.
Amaral, 239 Ariz. 217, 219–20, ¶ 10 (2016).

¶6            To state a colorable claim of ineffective assistance of counsel,
a defendant must show both that counsel’s performance fell below
objectively reasonable standards and that counsel’s deficient performance
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984).
“To be colorable, the claim must have the appearance of validity, a
determination that the trial court is in a better position to make than this
court.” State v. Boldrey, 176 Ariz. 378, 380 (App. 1993). To have the
appearance of validity, there must be something in the record that arguably
supports the claim. State v. Suarez, 23 Ariz. App. 45, 46 (1975); see State v.



                                      2
                            STATE v. BENJAMIN
                            Decision of the Court

Wilson, 179 Ariz. 17, 20 (App. 1993) (a defendant’s self-serving affidavit
alone is generally insufficient).

¶7             In her petition for post-conviction relief, Benjamin alleged her
counsel was ineffective by failing to investigate her case, by failing to
provide information regarding the plea agreement, and by coercing her
guilty plea. Although Benjamin claimed her counsel failed to investigate
her case, prepare a defense, and request a presentence report, she offers no
specifics as to what those actions would have accomplished or how they
would have changed the outcome. The trial court need not conduct an
evidentiary hearing based on mere generalizations and unsubstantiated
claims of ineffective assistance of counsel. State v. Borbon, 146 Ariz. 392,
399–400 (1985).

¶8             There was likewise no abuse of discretion by the trial court in
finding Benjamin was fully informed regarding the material terms of the
plea agreement. The record reflects that the trial judge who accepted the
plea went over the terms of the plea agreement with her, and Benjamin
assured the judge that she had read the plea agreement, understood its
terms, and understood the rights she was waiving by pleading guilty. The
trial court could therefore reasonably conclude that her allegation that she
lacked the information necessary to make a knowing and intelligent
decision to plead guilty due to ineffective assistance of counsel does not
have the appearance of validity.

¶9            Benjamin’s claim that her counsel coerced her guilty plea is
equally lacking in merit. At the change of plea hearing, the judge asked
Benjamin whether anyone had forced, threatened or coerced her guilty plea
and she responded “No.” “A defendant must not tell the judge that [her]
plea is entered into voluntarily if it is not.” State v. Hamilton, 142 Ariz. 91,
93 (1984).

¶10             As part of her claim of ineffective assistance of counsel,
Benjamin alleged the official transcript of the change of plea hearing was
falsified. Benjamin submitted nothing in support of this assertion other
than her own allegation. Absent some showing in the record to support
this claim, it does not have an appearance of validity and therefore is not a
basis for granting relief. See Suarez, 23 Ariz. App. at 46.

¶11           Benjamin also alleged a claim of ineffective assistance of post-
conviction relief counsel. Like the claim raised in regards to trial counsel,
Benjamin alleged her appointed post-conviction relief counsel failed to
investigate her case or take action to protect her rights, but again offered no



                                       3
                            STATE v. BENJAMIN
                            Decision of the Court

specific detail of what action her counsel could have undertaken that would
have changed the outcome. These sorts of generalized and unsupported
allegations are insufficient to warrant an evidentiary hearing. See Borbon,
146 Ariz. at 399–400. Accordingly, the trial court did not abuse its
discretion.

¶12           Finally, to the extent Benjamin adds new claims for relief in
her petition for review, such as a biased trial judge and an illegal and
excessive sentence, we do not consider them. A petition for review may not
raise issues not first presented to the trial court in the petition for post-
conviction relief. State v. Ramirez, 126 Ariz. 464, 468 (App. 1980); see also
Ariz. R. Crim. P. 32.9(c)(4)(B)(ii) (requiring petition for review to contain “a
statement of issues the trial decided that the defendant is presenting for
appellate review”).

¶13           Accordingly, although we grant review, we deny relief.




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




                                         4
