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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       JAMIE SOTO JACOTT, Petitioner.

                          No. 1 CA-CR 18-0802 PRPC
                               FILED 4-2-2019


     Petition for Review from the Superior Court in Maricopa County
                          No. CR2011-006680-001
                    The Honorable Jeanne Garcia, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Andrea L. Kever
Counsel for Respondent

Jaime Soto Jacott, Eloy
Petitioner
                            STATE v. JACOTT
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Jennifer B. Campbell joined.


M c M U R D I E, Judge:

¶1            Petitioner Jaimie Soto Jacott petitions this court to review the
denial of his petition for post-conviction relief. For the following reasons,
we grant review but deny relief.

             FACTS AND PROCEDURAL BACKGROUND

¶2           The State charged Jacott with sale or transportation of a
dangerous drug under A.R.S. § 13-3407(A)(7). Jacott pled not guilty, and the
court scheduled the matter for trial.

¶3              Jacott failed to appear for the trial. The court found that he
had voluntarily chosen not to be present and ordered that the trial proceed
in his absence. The facts, as noted by this court on Jacott’s direct appeal,
State v. Jacott, 1 CA-CR 14-0307, 2015 WL 5772212 (Ariz. App. Oct. 1, 2015)
(mem. decision), reveal the following. In July 2010, police officers were
using an audio- and video-surveilled residence to conduct undercover
operations in a Phoenix neighborhood. Id. at *1, ¶ 7. On July 7, Detective
David Mendez, working undercover, encountered an individual named
Charlie Martinez at a gas station. Id. Mendez spoke with Martinez, and
Martinez asked him if he was interested in purchasing methamphetamine.
Id. Mendez told Martinez that he would check with a friend. Id. After
telephoning Detective Kevin Chadwick, who was waiting at the undercover
residence, Mendez arranged for Martinez to bring the methamphetamine
to the residence. Id.

¶4             Following Martinez’s instructions, Mendez returned to the
area of the residence and waited outside. Jacott, 2015 WL 5772212 at *2, ¶ 8.
Martinez arrived with Jacott. Id. Martinez introduced Jacott and stated that
he would be “taking care” of them. Id. The three men then entered the
residence together. Id. Chadwick informed Jacott that he wanted 0.5 grams
of methamphetamine. Id. Jacott removed a substance from his bag, used
Chadwick’s scale, and measured out an amount. Id. Chadwick paid Jacott




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                              STATE v. JACOTT
                             Decision of the Court

$40, placed the substance in a plastic bag, and put it in his pocket. Id. Testing
later revealed that the substance was 0.67 grams of methamphetamine. Id.

¶5            After considering the evidence and counsels’ arguments, the
jurors returned a guilty verdict. Five months later, Jacott was taken into
custody for a new offense. After a hearing on Jacott’s prior convictions, the
court found that the State had proved eight prior felony convictions. The
court entered judgment on the jury’s verdict and sentenced Jacott to a
mitigated prison term of 10 years of flat time.

¶6             On appeal, Jacott’s lawyer filed a brief in compliance with
Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969).
Jacott, 2015 WL 5772212 at *1, ¶ 2. Jacott filed a supplemental brief. Id. This
court found no fundamental error and affirmed the conviction and sentence
as modified. Id. at ¶ 3.

¶7             Jacott then timely filed a notice of post-conviction relief. A
lawyer was appointed, but, finding no arguable issues, filed a motion to
allow Jacott to file a supplemental petition. See Lammie v. Baker, 185 Ariz.
263 (1996); Montgomery v. Sheldon, 181 Ariz. 256 (1995), supplemented, 182
Ariz. 118 (1995); State v. Rodriguez, 183 Ariz. 331 (App. 1995). Jacott filed a
pro se petition raising the following claims:

       1.     Petitioner was not given advice by counsel as to the
       strength of the State’s evidence against him (first counsel).

       2.     Petitioner was not given advice by counsel as to the
       strength of the State’s evidence against him (second counsel).

       3.    Counsel was ineffective for failing to abide by the
       Court order to request a Rule 26.5 evaluation.

       4.    Counsel was ineffective when he stipulated to the
       substance found being methamphetamine.

       5.     Petitioner has been denied the protections of Anders v.
       California in his initial post-conviction proceeding.

The superior court concluded that Jacott had “failed to show a colorable
claim for ineffective assistance of counsel,” and summarily dismissed the
pro se petition.

¶8            Jacott timely petitioned this court to review the superior
court’s decision. We find no error in the superior court’s ruling.



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                                DISCUSSION

¶9             Absent an abuse of discretion or error of law, this court will
not disturb a superior court’s ruling on a petition for post-conviction relief.
State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). It is Jacott’s burden to show
that the court abused its discretion by denying the petition for post-
conviction relief. See State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011)
(petitioner has the burden of establishing an abuse of discretion on review).
However, a petition for review may not present issues or arguments not
made to the superior court. Ariz. R. Crim. P. 32.9(c)(4)(B); State v. Bortz, 169
Ariz. 575, 577–78 (App. 1991); State v. Ramirez, 126 Ariz. 464, 468 (App.
1980); see State v. Smith, 184 Ariz. 456, 459 (1996) (holding there is no review
for fundamental error in a post-conviction relief proceeding).

¶10             “To state a colorable 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.” State v. Febles, 210 Ariz. 589, 595, ¶ 18 (App. 2005) (citing
Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). The first prong of the
test requires a court to consider “whether counsel’s assistance was
reasonable considering all the circumstances.” Strickland, 466 U.S. at 688.
The second prong asks whether there is a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. We “need not approach the inquiry in a specific
order or address both prongs of the inquiry if the defendant makes an
insufficient showing on one.” State v. Salazar, 146 Ariz. 540, 541 (1985)
(citing Strickland, 466 U.S. at 697). “In particular, a court need not determine
whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies.”
Id. (quoting Strickland, 466 U.S. at 697).

¶11             “To establish deficient performance during plea negotiations,
a petitioner must prove that the lawyer either (1) gave erroneous advice or
(2) failed to give information necessary to allow the petitioner to make an
informed decision whether to accept the plea.” State v. Donald, 198 Ariz. 406,
413, ¶ 16 (App. 2000). “To establish prejudice in the rejection of a plea offer,
a defendant must show ‘a reasonable probability that, absent his attorney’s
deficient advice, he would have accepted the plea offer’ and declined to go
forward to trial.” Id. at 414, ¶ 20 (quoting People v. Curry, 687 N.E.2d 877,
888 (Ill. 1997)).

¶12         Jacott claims that his first attorney did not sufficiently advise
him regarding the strength of the State’s case, such that he could make an


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informed decision whether to accept the State’s plea offer. The record does
not support Jacott’s factual assertion. At a settlement conference, the court
told Jacott that “there’s video surveillance” of a “sale to an undercover
officer” so that he “would have a very hard time convincing a jury that [he]
didn’t do it.” To which Jacott acknowledged, “Right.” There was no
confusion about the strength of the State’s case and Jacott’s
understanding—the crime was recorded, and he was going to be convicted.
To establish a claim of ineffective assistance of counsel, a defendant must
do more than simply contradict what the record plainly shows. See State v.
Jenkins, 193 Ariz. 115, 120, ¶ 15 (App. 1998) (defendant’s claim he was
unaware sentence “must be served without possibility of early release” not
colorable when “directly contradicted by the record”).

¶13             Jacott argues that once his second attorney recognized the
strength of the State’s case, he should have secured a plea offer from the
State. Again, the record shows that Jacott was advised at the settlement
conference that the offer on the table was a “fast-track” offer. Jacott was also
advised that if he refused the offer at the settlement conference that a plea
would not be reoffered. The second lawyer could not secure a plea offer
after Jacott refused the offer. Moreover, even assuming a second offer could
have been secured, Jacott fled and was not available to accept such a plea.
Finally, we reject Jacott’s “attempt to extend the Donald rationale to
potential plea agreements that were never actually offered and the terms of
which are unknown.” State v. Jackson, 209 Ariz. 13, 16, ¶ 9 (App. 2004).
“Absent a colorable allegation that a specific plea agreement would have
been extended,” and that Jacott “would have entered into such an
agreement,” he “could not have established he had been prejudiced.” Id. at
17, ¶ 9. As such, Jacott did not raise a colorable claim of ineffective
assistance of counsel during the plea negotiating phase.

¶14            Regarding Jacott’s claim that his trial counsel was ineffective
for failing to file a Rule 26.5 motion, we likewise find that Jacott has failed
to allege a colorable claim of prejudice. Arizona Rule of Criminal Procedure
26.5 authorizes the superior court to order a defendant to submit to a
“mental health examination or a diagnostic evaluation.” The evidence
adduced from a Rule 26.5 report may be used for the court to determine
competency to be sentenced, or for mitigation. See State v. Clabourne, 142
Ariz. 335, 346–47 (1984). Here, the parties discussed the need for a Rule 26.5
report, and the court requested that counsel file a motion. Counsel did not
file the motion requested by the court.

¶15        We do not have to decide if trial counsel’s failure to file the
Rule 26.5 motion constituted deficient performance under Strickland


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                            STATE v. JACOTT
                           Decision of the Court

because the record does not show a colorable claim for prejudice. Salazar,
146 Ariz. at 541–42. There is evidence in the record that Jacott has been
previously diagnosed as seriously mentally ill (“SMI”). However, the prior
SMI diagnosis alone does not establish that Jacott was incompetent at the
time of sentencing. State v. Hartford, 130 Ariz. 422, 426 (1981) (although
defendant had a history of mental illness, based upon the observance of the
court there was no reason for the superior court to believe that defendant
was incompetent to be sentenced). Trial counsel told the court that he did
not experience problems with Jacott, and Jacott did not refer the court to
any specific reference in the record evidencing a problem with
competency. 1 Likewise, Jacott did not offer the court a current diagnosis
opining that he was incompetent at the time of sentencing.

¶16           Regarding the use of a Rule 26.5 report for mitigation, the
superior court noted that Jacott received a mitigated sentence and found he
had not presented a colorable claim. Again, without a specific current
diagnosis, it was impossible for the court to conclude how additional
evidence could have changed the outcome. The superior court is in the best
position to determine the “reasonable probability” that the “result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. We find
no abuse of discretion by the court in finding Jacott did not present a
colorable claim of ineffective assistance of counsel regarding the Rule 26.5
motion.

¶17            Finally, Jacott argues it was ineffective for trial counsel to
stipulate that the substance he sold was methamphetamine. He speculates
the substance was not methamphetamine but offered the superior court no
evidence that challenged the State’s expert’s findings. The court did not err
by dismissing this claim.

¶18           Jacott claims that he was entitled to an Anders review
regarding his Rule 32 proceeding. This court has rejected Jacott’s claim. See
State v. Chavez, 243 Ariz. 313, 314, ¶ 1 (App. 2017).



1       Rule 32.5(a) states that a petition “must include a memorandum that
contains citations to relevant portions of the record.” “[C]ompliance with
Rule 32 is not a mere formality.” Canion v. Cole, 210 Ariz. 598, 600, ¶ 11
(2005). A petitioner must “strictly comply” with Rule 32 to be entitled to
relief. Id. Jacott’s conclusory statements that the record shows he did not
understand what was going on at the settlement conference, does not
comply with the rule.



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                    STATE v. JACOTT
                   Decision of the Court

                      CONCLUSION

¶19   For the foregoing reasons, we grant review but deny relief.




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




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