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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

            FRANCISCO JAVIER SANTOS BARAJAS, Petitioner.

                          No. 1 CA-CR 13-0576 PRPC
                                FILED 4-23-2015


     Petition for Review from the Superior Court in Maricopa County
                       No. CR 2010-130961-001 DT
                  The Honorable Randall H. Warner, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

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

Francisco Javier Santos Barajas, Globe
Petitioner



                        MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Jon W. Thompson joined.
                       STATE v. SANTOS BARAJAS
                          Decision of the Court

J O N E S, Judge:

¶1            Francisco Javier Santos Barajas (Barajas) petitions for review
of the denial of both his petition for post-conviction relief and motion for
rehearing, which were filed pursuant to Arizona Rule of Criminal
Procedure 32. We have considered his petition and, for the reasons stated,
grant review and deny relief.

¶2             In 2010, Barajas was convicted by a jury of aggravated assault,
a class 3 felony and dangerous offense. The trial court sentenced Barajas to
an aggravated ten-year prison term. We affirmed his conviction and
sentence on appeal. State v. Barajas, 1 CA-CR 10-1028 (Ariz. App. Jan. 3,
2012) (mem. decision).

¶3            Barajas filed a timely petition for post-conviction relief in
which he alleged trial counsel rendered ineffective assistance by failing to
communicate and discuss the advantages and disadvantages of a plea offer
extended by the State prior to trial.1 The trial court held an evidentiary
hearing on the claim and denied relief, finding the plea offer could not have
been communicated to and accepted by Barajas because it was immediately
withdrawn, and even if it had been open and conveyed, Barajas would not
have accepted its terms. The trial court thereafter denied Barajas’s motion
for rehearing.

¶4           Barajas contends the trial court erred in denying him relief on
his claim. 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 the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v.
Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985). To establish 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.” Strickland, 466 U.S at 694.

¶5            When a trial court finds a claim colorable and conducts 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 trial court’s findings of fact
is limited to a determination of whether those findings are clearly


1      This plea offer would have required Barajas to plead to the offense
as charged in exchange for a stipulation to the presumptive prison term of
7.5 years.


                                      2
                        STATE v. SANTOS BARAJAS
                           Decision of the Court

erroneous.” State v. Sasak, 178 Ariz. 182, 186, 871 P.2d 729, 733 (App. 1993)
(citing State v. Cuffle, 171 Ariz. 49, 51, 828 P.2d 773, 775 (1992)). 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. (citing State v. Atwood, 171 Ariz. 576,
596, 832 P.2d 593, 613 (1992)). When “the trial court’s ruling is based on
substantial evidence, this court will affirm.” Id. (citing Atwood, 171 Ariz. at
597, 832 P.2d at 614).

¶6             The record supports the trial court’s ruling. In its order
denying relief, the trial court made a finding of fact that although there had
been an initial plea offer made by the State, the offer had been immediately
withdrawn before defense counsel had any opportunity to convey the offer
to Barajas. The court therefore concluded that defense counsel was not
ineffective in failing to convey the plea offer because, having already been
withdrawn, it could not have been accepted by Barajas. Because the
testimony presented at the evidentiary hearing provided substantial
evidence that there had been no plea offer that could have been accepted,
we have no basis for disturbing the trial court’s ruling that Barajas failed to
sustain his burden of proving he was deprived of effective assistance of
counsel. Additionally, the trial court did not abuse its discretion in its
denial of Barajas’s motion for rehearing.

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




                                    :ama




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