Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County Nos. CR20080785001, CR20080904001, CR20084119001, and CR20091306001 The Honorable D. Douglas Metcalf, Judge
Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent
Luis Antonio Caballero, Tucson In Propria Persona
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Miller and Judge Espinosa concurred.
ECKERSTROM, Chief Judge:
¶1 Petitioner Luis Caballero seeks review of the trial court's order denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Caballero has not sustained his burden of establishing such abuse here.
¶2 Pursuant to a plea agreement related to four different cases, Caballero was convicted in 2009 of possession of a narcotic drug, possession of a narcotic drug for sale, and three counts of aggravated assault. The trial court sentenced him to concurrent and consecutive prison terms totaling 26.75 years.
¶3 Caballero thereafter initiated Rule 32 proceedings. In the first, he raised a claim of ineffective assistance of trial counsel. After an evidentiary hearing, the trial court denied relief in February 2014. In a second proceeding, he raised a claim of ineffective assistance of Rule 32 counsel. The trial court denied relief in August 2014, and Caballero filed a petition for review in this court challenging the trial court's rulings in both proceedings. Because his petition was untimely as to the first proceeding, we granted review only to consider the ruling in the second one. State v. Caballero, No. 2 CA-CR 2014-0311-PR ¶ 7 (memorandum decision filed Feb. 25, 2015). We denied relief, id. ¶ 9, but noted in our decision that Rule 32.9 allowed Caballero to seek permission in the trial court to file a delayed petition for review as to the ruling in the first proceeding, id. n.5. While that petition for review was pending, Caballero filed a third notice of post-conviction relief, alleging a conflict of interest based on the prosecutor having worked for the trial judge as a law clerk. The trial court dismissed that notice on January 15, 2015.
¶4 In March 2015, Caballero filed a motion "to comply with appellate decision, " urging the trial court to allow him a delayed petition for review as to both the first and third proceedings. The court granted a delayed petition as to the first proceeding, but denied it as to the third.
¶5 On review, Caballero first repeats the claims made in his third proceeding relating to the prosecutor and former law clerk. Caballero's petition, filed in June 2015, is untimely as to the ruling in that petition, see Rule 32.9(c), and the trial court denied his motion for a delayed petition for review as to that proceeding. We therefore do not consider that claim.
¶6 In his primary argument, Caballero argues, as he did below, that trial counsel was ineffective in relation to his guilty plea because counsel had misinformed him as to whether his sentences would run concurrently or consecutively. And he maintains counsel should have retained a mitigation specialist.
¶7 "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 this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). After a hearing on such a claim, our review of the court's factual findings "is limited to a determination of whether those findings are clearly erroneous"; we "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." State v. Sasak, 178 Ariz. 182, 186, 871 P.2d 729, 733 (App. 1993). When "the trial court's ruling is based on substantial evidence, this court will affirm." Id. And, "[e]vidence is not insubstantial merely because testimony is conflicting or reasonable persons may draw different conclusions from the evidence." Id.; see also State v. Fritz, 157 Ariz. 139, 141, 755 P.2d 444, 446 (App. 1988) (trial court sole arbiter of witness credibility in post-conviction proceeding).
¶8 In this case, the trial court rejected Caballero's testimony as not credible, finding it "contradict[ed] statements he made at his change-of-plea hearing." In contrast, the court found Caballero's attorney's testimony credible and consistent with the plea colloquy held before the court. The court also concluded Caballero had not established prejudice because nothing suggested the sentencing judge "would have ...