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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    YSIDRO JUAN VALDEZ, Petitioner.

                         No. 1 CA-CR 16-0027 PRPC
                              FILED 8-10-2017


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2012-116709-001 DT
                 The Honorable Karen L. O’Connor, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Ysidro Juan Valdez, Kingman
Petitioner
                              STATE v. VALDEZ
                             Decision of the Court



                       MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia K. Norris 1 joined.
                                                                     0F




C A M P B E L L, Judge:

¶1             Ysidro Juan Valdez petitions for review of the summary
dismissal of his petition for post-conviction relief. We have considered the
petition for review and, for the reasons stated, grant review but deny relief.

¶2            Valdez pled guilty to one count of sexual assault, a class 2
felony, and two counts of attempted sexual assault, each a class 3 felony.
The trial court sentenced Valdez to an aggravated 14-year prison term on
the sexual assault count, and on the attempted sexual assault counts
suspended the imposition of sentence and placed Valdez on lifetime
probation.

¶3             Valdez filed a timely proceeding for post-conviction relief.
After appointed counsel notified the trial court that she found no basis for
post-conviction relief, Valdez filed a pro se petition for post-conviction
relief, alleging claims of: ineffective assistance of counsel, couched in the
terms of newly discovered DNA evidence and his involuntary entry of a
plea agreement; disclosure violations; and an illegally imposed aggravated
sentence.

¶4              On review, Valdez argues the trial court erred in denying his
petition. We review a trial court’s denial of a petition for post-conviction
relief for abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006).
Summary dismissal is appropriate “[i]f the court . . . determines that no . . .
claim presents a material issue of fact or law which would entitle the
defendant to relief under this rule and that no purpose would be served by
any further proceedings.” Ariz. R. Crim. P. 32.6(c). A colorable claim is one
that, if the allegations are true, would “probably” have changed the verdict

1      The Honorable Patricia K. Norris, Retired Judge of the Arizona Court
of Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.




                                        2
                            STATE v. VALDEZ
                           Decision of the Court

or sentence. State v. Amaral, 239 Ariz. 217, 220, ¶ 11 (2016). In determining
whether a claim is colorable, we consider the allegations in light of the
entire record. See State v. Lemieux, 137 Ariz. 143, 146 (App. 1983). The trial
court did not err in summarily dismissing Valdez’s petition for post-
conviction relief.

¶5           The trial court did not abuse its discretion in concluding
Valdez had failed to state a colorable claim of ineffective assistance of
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, 687-88 (1984).

¶6             The record does not support the claim that defense counsel
failed to evaluate the DNA evidence. The record reflects Valdez’s DNA was
found inside the condom recovered from the victim following the sexual
assault. Both his counsel and the prosecutor reviewed this fact at the change
of plea hearing. Valdez misstates the record by arguing the test results
showed that the victim’s DNA was not on the condom, and thus, he had a
defense to the sexual assault charges. The lab reports stated that the victim
cannot be excluded as a contributor to the mixed profile non-sperm fraction
obtained from the condom. 2 Thus, contrary to Valdez’s contention, the
                             1F




DNA test results do not constitute exculpatory evidence. Valdez failed to
present a colorable claim of ineffective assistance of counsel with respect to
the DNA test results.

¶7            Further, he argues that trial counsel did not honor his request
to withdraw from the plea. The record contains no support for Valdez’s
assertion he asked to withdraw from the plea before being sentenced.
Indeed, at the sentencing hearing, Valdez told the trial court he was willing
to accept the consequences of his actions. Additionally, the record contains
no evidence supporting any grounds that would entitle Valdez to withdraw
from the plea. State v. Pandeli, 242 Ariz. 175, __, ¶ 33 (2017) (“Counsel’s
failure to make a futile motion does not constitute ineffective assistance of
counsel.”) (citation omitted). Thus, the trial court did not abuse its




2      “A mixed profile of at least two contributors, at least one of whom is
male, was obtained from the non-sperm fraction from swabs from ‘inside
as received’ of condom 01.2. Victim [] cannot be excluded as a contributor
to the mixed profile obtained from the non-sperm fraction from swabs from
‘inside as received’ condom 01.2.” (Emphasis added.)


                                      3
                             STATE v. VALDEZ
                            Decision of the Court

discretion in finding Valdez failed to state a colorable claim of ineffective
assistance of counsel.

¶8             Because the ineffective assistance of counsel claims are
without merit, Valdez’s claim of involuntary plea predicated on those
claims also necessarily fails. There is likewise no merit to the claim that his
plea was involuntary due to promises made by his counsel regarding the
outcome at sentencing. The record of the change of plea hearing reflects that
the trial court fully informed Valdez of the pertinent facts regarding the
plea agreement and that Valdez knowingly and voluntarily agreed to plead
guilty pursuant to its terms. Indeed, the trial court specifically asked
Valdez whether anyone had promised him that he would receive less than
14 years, and Valdez answered “no.” The trial court also asked Valdez
whether anyone had made any threats or used any force to get him to plead
guilty, to which he also responded “no.” All claims regarding threats or
promises inducing a guilty plea are foreclosed by the trial court’s
questioning pursuant to Boykin v. Alabama, 395 U.S. 238 (1969), and Valdez’s
responses at the change of plea hearing. See State v. Hamilton, 142 Ariz. 91,
93 (1984) (“A defendant must not tell the judge that his plea is entered into
voluntarily if it is not.”).

¶9             Valdez believes that the State had an obligation to produce
the victim at sentencing or to disclose her unavailability for sentencing. He
tries to equate this lack of “disclosure” to a Brady violation. Brady v.
Maryland, 83 S.Ct. 1194 (1963). Valdez misunderstands Brady and
misunderstands the State’s obligations following a plea of guilty. Id. at 1196-
97 (suppression by prosecution of evidence favorable to an accused upon
request violates due process when evidence is material either to guilt or to
punishment, irrespective of good faith or bad faith of prosecution).

¶10            Here, the State did not withhold any exculpatory evidence. 3  2F




At the change of plea hearing the State indicated the victim was available
and provided an outline of her anticipated testimony should the case
proceed to trial. Additionally, had Valdez chosen to proceed to trial, the
State could have produced the victim at trial. The State had no obligation to
disclose if the victim would attend the sentencing hearing.

¶11          Valdez is likewise not entitled to relief on his claim of illegal
sentence. In his plea agreement Valdez specifically agreed that the trial

3      Valdez further argues that a Brady violation occurred because the
State withheld exculpatory DNA evidence. We reject this argument. See
supra ¶ 6.


                                      4
                             STATE v. VALDEZ
                            Decision of the Court

court could find any aggravating circumstances by a preponderance of the
evidence, without being bound by the rules of evidence. By the terms of the
plea agreement, Valdez waived any defects or errors in the entry of
judgment and the “imposition of a sentence upon [him] consistent with
[the] agreement.” He thus waived his rights under Apprendi v. New Jersey,
530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296, 310 (2004) (under
Apprendi statutory maximum is sentence a judge may impose solely on
basis of facts found by jury or admitted by defendant; defendant who
pleads guilty waives Apprendi rights so long as defendant stipulates to the
relevant facts or consents to judicial fact finding).

¶12           Here, the plea agreement expressly provided for imposition
of a sentence on the sexual assault count between 5.25 and 14 years. This
fact was fully explained to Valdez by the trial court and Valdez
acknowledged his agreement to that sentencing range at the change of plea
hearing. Moreover, the trial court imposed an aggravated sentence on this
count based on facts—the victim’s age and her emotional pain—that Valdez
acknowledged at that hearing. Given these circumstances, the court did not
impose an illegal sentence under either the plea agreement or Blakely.

¶13            Finally, Valdez also asserts a claim of actual innocence in his
petition for review. We have not addressed this claim because Valdez did
not raise it in his petition for post-conviction relief. A petition for review
may not raise issues not first presented to the trial court in the petition for
post-conviction relief. See Ariz. R. Crim. P. 32.9(c)(1)(ii) (requiring petition
for review to contain “issues which were decided by the trial court and
which the defendant wishes to present to the appellate court for review”).
Nor may a petitioner attempt to supplement his petition for post-conviction
relief by adding claims in additional filings after a ruling on the petition.
See State v. Ramirez, 126 Ariz. 464, 468 (1980) (amendment to pleadings only
permitted prior to trial court’s ruling dismissing petition).

¶14           Accordingly, we grant review, but deny relief.




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




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