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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
BULMARO SOTO-PORTILLO, Petitioner.
No. 1 CA-CR 14-0476 PRPC
FILED 8-9-2016
Petition for Review from the Superior Court in Maricopa County
No. CR2010-127952-002
The Honorable Roger E. Brodman, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Bulmaro Soto-Portillo, Tucson
Petitioner
STATE v. SOTO-PORTILLO
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Donn Kessler joined.
J O N E S, Judge:
¶1 Bulmaro Soto-Portillo petitions for review of the superior
court’s summary dismissal of his petition for post-conviction relief, filed
pursuant to Arizona Rule of Criminal Procedure 32.1. We have considered
his petition for review and, for the reasons stated, grant review but deny
relief.
FACTS AND PROCEDURAL HISTORY
¶2 A jury convicted Soto-Portillo of six counts of kidnapping and
one count each of armed robbery, aggravated assault, burglary in the first
degree, and theft of means of transportation. The superior court sentenced
him to concurrent and consecutive aggravated prison terms totaling 27.5
years. This court affirmed the convictions and sentences on appeal. State
v. Soto-Portillo, 1 CA-CR 11-0493, 2012 WL 6599808 (Ariz. App. Dec. 18,
2012) (mem. decision).
¶3 Soto-Portillo filed a notice of post-conviction relief, and the
superior court appointed counsel to represent him. After counsel filed a
notice of completion of review stating she was unable to find any issues to
raise, Soto-Portillo filed a pro se petition alleging claims of ineffective
assistance of trial counsel. The superior court summarily dismissed the
petition, ruling Soto-Portillo failed to state a colorable claim for relief. This
petition for review followed. We have jurisdiction pursuant to Arizona
Revised Statutes section 12-120.21(A)(1) (2016) and Arizona Rule of
Criminal Procedure 32.9(c).
DISCUSSION
¶4 On review, Soto-Portillo argues the superior court erred in
ruling he failed to state a colorable claim of ineffective assistance of counsel.
We review the summary dismissal of a post-conviction relief proceeding for
an abuse of discretion. See State v. Kolman, 239 Ariz. 157, 161, ¶ 9 (2016). We
may affirm the ruling “if it is legally correct for any reason.” State v.
Roseberry, 237 Ariz. 507, 508, ¶ 7 (2015).
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STATE v. SOTO-PORTILLO
Decision of the Court
¶5 To obtain relief on a claim of ineffective assistance of counsel,
a defendant must show: (1) counsel’s performance fell below objectively
reasonable standards, and (2) the deficient performance prejudiced the
defendant. See Strickland v. Washington, 466 U.S. 668, 687 (1984); State v.
Nash, 143 Ariz. 392, 397 (1985). A court need not address both prongs of an
ineffective assistance claim if a defendant makes an insufficient showing on
one. Strickland, 466 U.S. at 697; see also State v. Bennett, 213 Ariz. 562, 567,
¶ 21 (2006).
¶6 In considering the matter of counsel’s performance, courts
“must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466 U.S. at
689; see also Bennett, 213 Ariz. at 567, ¶ 22. Thus, although a defendant is
not required to establish proof by a preponderance through his petition
alone, in order to state a colorable claim, he “must raise some factors that
demonstrate that the attorney’s representation fell below the prevailing
objective standards.” State v. Borbon, 146 Ariz. 392, 399-400 (1985).
Accordingly, to state a colorable claim, the petitioner “must provide specific
factual allegations that, if true, would entitle him to relief.” State v. Donald,
198 Ariz. 406, 413, ¶ 17 (App. 2000). The allegations should be supported
by sworn statements “or provide a satisfactory explanation of their
absence.” Id.
¶7 Soto-Portillo advances two claims of ineffective assistance of
counsel with respect to his rejection of a plea offer.1 First, he contends his
counsel was ineffective by failing to advise him, as a Mexican National, of
his right to consular assistance from the Mexican consulate under Article 36
of the Vienna Convention. According to Soto-Portillo, the Mexican
consulate would have advised him correctly on the advantages of entering
1 Soto-Portillo raises a third argument — that he did not
“intelligently” reject the plea offer — for the first time in his petition for
review. Because that issue was not considered or decided by the superior
court, we need not and do not address it. See Ariz. R. Crim. P. 32.9(c)(1)(ii)
(stating petition for review shall contain “issues which were decided by the
trial court and which the defendant wishes to present to the appellate court
for review”) (emphasis added); see also State v. Vera, 235 Ariz. 571, 573, ¶ 8
(App. 2014) (“[W]e ordinarily do not consider issues on review that have
not been considered and decided by the trial court; this is particularly true
when we are reviewing a court’s decision to grant or deny post-conviction
relief under Rule 32.”).
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STATE v. SOTO-PORTILLO
Decision of the Court
a plea. Soto-Portillo, however, provides no evidence or authority that he
was entitled to assistance from the consulate or that the consulate would
actually respond to any notification of his situation. See State v. Sanchez-
Llamas, 108 P.3d 573, 578 (Or. 2005) (“Article 36 of the [Vienna Convention]
does not create rights to consular access or notification that are enforceable
by detained individuals in a judicial proceeding.”), aff’d, Sanchez-Llamas v.
Oregon, 548 U.S. 331 (2006). Thus, these allegations are insufficient to state
a colorable claim.
¶8 Second, Soto-Portillo contends his counsel provided
ineffective assistance by not fully informing him of the charges against him
during plea negotiations. Specifically, Soto-Portillo states in an affidavit
submitted in support of the petition for post-conviction relief that his
counsel failed to give him a “legal definition” of kidnapping and that this
failure “altered” his decision on the plea offer. However, Soto-Portillo does
not claim his counsel did not adequately explain the elements of the
offenses in some manner. Nor does he claim he did not understand what
his counsel told him regarding the plea offer or the charged offenses, that
counsel did not adequately discuss the plea offer or the advantages of the
plea offer, or that he had any questions about the plea offer or charges that
were not answered by his counsel. See Strickland, 466 U.S. at 691 (noting the
reasonableness of counsel’s actions may be “determined or substantially
influenced by” the information supplied by the defendant). Additionally,
Soto-Portillo was questioned regarding his understanding of the plea offer
at a hearing held pursuant to State v. Donald, 198 Ariz. 406 (App. 2000), in
which he stated he had no questions for either the court or counsel. The
court is entitled to rely upon representations made by the defendant
regarding his understanding of and willingness to enter a plea agreement.
See State v. Hamilton, 142 Ariz. 91, 92-93 (1984). Considering the entirety of
the record, the superior court did not abuse its discretion in finding Soto-
Portillo failed to state a colorable claim of ineffective assistance with respect
to his plea negotiations. State v. Lemieux, 137 Ariz. 143, 146 (App. 1983)
(considering the entire record when determining whether the defendant
could establish counsel was ineffective).
¶9 Soto-Portillo also argues his counsel provided ineffective
assistance at trial by failing to object to juror questions. The jury is expressly
authorized by Arizona Rule of Criminal Procedure 18.6(e) to ask questions
of witnesses. Therefore, counsel’s failure to object cannot constitute
deficient performance. Moreover, even if the practice of juror questions
was objectionable, Soto-Portillo has failed to show how he was prejudiced
by any of the questions asked.
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STATE v. SOTO-PORTILLO
Decision of the Court
CONCLUSION
¶10 We grant review of Soto-Portillo’s petition for review and
deny relief.
:AA
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