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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 JIMMY SANTA CRUZ PIEDRA, Petitioner.

                         No. 1 CA-CR 13-0663 PRPC
                              FILED 3-12-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-048279-001
                 The Honorable Jo Lynn Gentry, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Jimmy Santa Cruz Piedra, Florence
Petitioner
                             STATE v. PIEDRA
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Jon W. Thompson joined.



P O R T L E Y, Judge:

¶1           Petitioner Jimmy Santa Cruz Piedra 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             Piedra was indicted for multiple counts of child molestation,
attempted molestation and sexual abuse involving three different children.
He entered into a plea agreement and pled guilty to three counts of
attempted molestation of a child, all dangerous crimes against children,
involving two different children. He was sentenced to a presumptive term
of ten years in prison for one count and lifetime probation for the other two.

¶3            Piedra filed a pro se petition for post-conviction relief of-right
after his lawyer found no colorable claims for relief. The trial court
summarily dismissed the petition and Piedra now seeks review. We have
jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).

¶4             Piedra presents four claims of ineffective assistance of
counsel. He first argues his trial counsel was ineffective by: (1) failing to
present information regarding Piedra’s family, social and psychological
backgrounds as mitigating circumstances for sentencing purposes; (2)
failing to seek an evaluation of Piedra’s competency pursuant to Arizona
Rule of Criminal Procedure 11.2; and (3) failing to have Piedra undergo an
independent psychological evaluation for sentencing purposes and/or a
determination of his competency and, in turn, provide that information to
the trial court. Piedra also argues that his post-conviction relief counsel was
ineffective when he failed to identify and raise the issue regarding trial
counsel’s failure to obtain an independent psychological evaluation.

¶5           To state a colorable claim of ineffective assistance of counsel,
a defendant must show that counsel’s performance fell below objectively
reasonable professional standards and that the deficient performance
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984);


                                       2
                             STATE v. PIEDRA
                            Decision of the Court

State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985). The Sixth
Amendment does not entitle a defendant to mistake-free representation.
United States v. Gonzales-Lopez, 548 U.S. 140, 147 (2006). And there is a strong
presumption that counsel provided effective assistance, State v. Febles, 210
Ariz. 589, 596, ¶ 20, 115 P.3d 629, 636 (App. 2005), which the defendant must
overcome by providing evidence that counsel’s conduct did not comport
with professional norms. See State v. Herrera, 183 Ariz. 642, 647, 905 P.2d
1377, 1382 (App. 1995).

¶6             Moreover, matters of trial or sentencing strategy and tactics
are left to counsel’s best judgment. State v. Beaty, 158 Ariz. 232, 250, 762
P.2d 519, 537 (1988). Even if the strategy proves unsuccessful, tactical
decisions will not normally constitute ineffective assistance. State v. Farni,
112 Ariz. 132, 133, 539 P.2d 889, 890 (1975). However, a trial court need not
conduct an evidentiary hearing on claims of ineffective assistance when a
defendant’s claims are based on mere generalizations and unsubstantiated.
State v. Borbon, 146 Ariz. 392, 399, 706 P.2d 718, 725 (1985).

¶7             Here, Piedra asserts that his trial lawyer should have gathered
his school and counseling records and presented them to the court to
demonstrate that he had been sexually abused as a child, but had never
undergone counseling for the trauma. Even though his lawyer and the
presentence report highlighted Piedra’s traumatic childhood, as well as his
alcoholism, he does not identify how the records would have enhanced his
effort to mitigate his prison sentence given the nature of the crimes, the two
victims, and his past, albeit minor, criminal history. The court had counsel’s
sentencing memorandum, letters, and the presentence investigation with
its attachments, and, as a result, the court was aware of the details of
Piedra’s difficult upbringing and family life, his alcoholism and the fact he
was sexually abused by two family members when he was a child. The
court then had to balance Piedra’s background with the crimes he pled
guilty to, as well as the harm to the victims. The fact that the court did not
place Piedra on lifetime probation on all three counts does not demonstrate
that trial counsel’s tactics were below the professional norm, unreasonable
or legally ineffective.

¶8            Moreover, in challenging his trial lawyer’s failure to seek a
Rule 11 competency evaluation, Piedra only offers speculation that the
evaluation would have revealed he was not competent when he committed
the offenses or that he was otherwise not competent to stand trial. Likewise,
he only offers speculation that an independent psychological evaluation
would have revealed information useful for a determination of his
competency, or exculpatory information, or information that would have


                                       3
                             STATE v. PIEDRA
                            Decision of the Court

been useful for sentencing.1 Because Piedra has failed to meet his burden
concerning the Rule 11 evaluation or independent psychological
evaluation, he has failed to present a colorable claims of ineffective
assistance of his trial counsel or post-conviction relief counsel.
Accordingly, the court did not err by dismissing his petition.

¶9             We also note the petition for review presents additional
ineffective assistance of counsel claims that Piedra did not raise in the
petition for post-conviction relief. Although some of those claims were in
rebuttal to the State’s response, the court was not required to, and did not,
address the issues that were not raised in the petition. See State v. Lopez, 223
Ariz. 238, 240, ¶¶ 6-7, 221 P.3d 1052, 1054 (App. 2009). And 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).
Accordingly, the late filed issues are waived and the court did not err by
dismissing the petition.

¶10           We grant review, but deny relief.




                                   :ama




1 The record reveals Piedra’s first lawyer, before he withdrew, filed a
motion to have Piedra undergo a risk assessment and “psychosexual
evaluation” by a court-appointed psychologist. The motion was granted
and the sheriff’s office was ordered to transport Piedra to the psychologist
for evaluation. Although the record does not reveal that Piedra was taken
for the examination or the results of the examination, in his reply in support
of his petition, Piedra asserts that his trial lawyer decided not to contact the
doctor to set an appointment. (I. 26, 28, 30, 31, 81)


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