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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 OFARIZONA, Respondent,
v.
AUGUSTINE VILLANUEVA GUTIERREZ, Petitioner.
No. 1 CA-CR 13-0933 PRPC
FILED 9-10-2015
Appeal from the Superior Court in Maricopa County
No. CR2010-006306-001
The Honorable Kristin Hoffman, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Susan L. Luder
Counsel for Respondent
Augustine Villanueva Gutierrez, Douglas
Petitioner
STATE v. GUTIERREZ
Decision of the Court
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined.
T H O M P S O N, Judge:
¶1 Petitioner Augustine Villanueva Gutierrez 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 Gutierrez pled guilty to aggravated assault as a result of a
collision between his vehicle and a vehicle in which the victim was a
passenger. The trial court sentenced Gutierrez to a stipulated term of
sixteen years' imprisonment. Gutierrez filed a pro-se petition for post-
conviction relief of right after his counsel found no colorable claims for
relief. The trial court summarily dismissed the petition and Gutierrez now
seeks review. We have jurisdiction pursuant to Arizona Rule of Criminal
Procedure 32.9(c) and Arizona Revised Statute (A.R.S.) section 13-4239(C)
(2010).
¶3 Gutierrez properly presents three claims of ineffective
assistance of counsel. To state a colorable claim of ineffective assistance of
counsel, a defendant must show that counsel's performance fell below
objectively reasonable standards and that the deficient performance
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984).
To show 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." Id. at 694.
¶4 In his first two claims, Gutierrez argues his trial counsel was
ineffective when: (1) counsel failed to obtain and/or provide Gutierrez a
copy of a police report and (2) counsel allegedly told Gutierrez his vehicle
hit the victim's vehicle. Gutierrez contends he would not have pled guilty
if he had known the police report showed that, contrary to counsel's alleged
representations, the victim's vehicle struck Gutierrez's vehicle. Gutierrez
asserts he cannot be guilty of aggravated assault if his vehicle did not strike
the victim's vehicle.
2
STATE v. GUTIERREZ
Decision of the Court
¶5 We deny relief because there is no reasonable probability the
result of the proceeding would have been different but for counsel's alleged
actions or inactions. The basis for why Gutierrez claims he would not have
pled guilty is wholly unfounded. While the report indicates the victim's
vehicle struck Gutierrez's vehicle, the report further indicates the victim's
vehicle struck Gutierrez's vehicle because Gutierrez failed to yield right of
way and turned left in front of the victim's vehicle. Further, Gutierrez
admitted at the change of plea hearing that he recklessly caused the
accident and the injuries to the victim when he turned left in front of the
victim's vehicle while he drove with a blood alcohol concentration of .15
percent. Gutierrez acknowledged in his petition for post-conviction relief
that "Due to intoxication, [he] does not remember much of the accident."
Therefore, Gutierrez could be charged with and convicted of aggravated
assault for recklessly causing physical injury to the victim while using a
dangerous instrument. See A.R.S. §§ 13-1203(A)(1) (2010) (assault); 13-
1204(A)(2) (2010) (aggravated assault using a dangerous instrument). That
the victim's vehicle hit Gutierrez is of no matter; Gutierrez caused the
collision.
¶6 Gutierrez also argues his trial counsel was ineffective when
counsel allegedly advised Gutierrez not to accept an earlier plea offer that
would have provided for a range of sentence of five to 7.5 years'
imprisonment. We deny relief because the record shows there was no such
offer. The offer Gutierrez ultimately accepted was the State's first and only
offer. The State would not even entertain Gutierrez's counteroffer of twelve
to twenty-one years' imprisonment.
¶7 While the petition for review presents additional issues,
Gutierrez did not raise those issues in the petition for post-conviction relief
he filed below. A petition for review may not present issues not first
presented to the trial court. State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236,
238 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).
¶8 We grant review and deny relief.
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