FILED BY CLERK
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND M AY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. S ee Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24.
OCT 28 2009
COURT OF APPEALS DIVISION TWO
IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO
THE STATE OF ARIZONA, Respondent, v. LUIS BORREGO, Petitioner.
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2 CA-CR 2009-0187-PR DEPARTMENT B MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF GREENLEE COUNTY Cause No. CR2007-061 Honorable Monica Stauffer, Judge REVIEW GRANTED; RELIEF DENIED
Derek D. Rapier, Greenlee County Attorney B y Michael W. McCarthy
Clifton Attorneys for Respondent Globe In Propria Persona
Luis M. Borrego, Sr.
B R A M M E R, Judge. ¶1 In this p etition for review, Luis M. Borrego, Sr., challenges the trial court’s
summary denial of his application for post-conviction relief p ursuant to Rule 32, Ariz. R.
Crim. P. We will not disturb the court’s ruling unless it has clearly abused its discretion. State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006). We find no such abuse. ¶2 After a bench trial, Borrego was convicted of both possessing and transporting
214 pounds of marijuana for sale. The trial court sentenced him to concurrent, presumptive, five-year terms of imprisonment and ordered him to pay $270,000 in fines and surcharges. On appeal, this court affirmed the denial of Borrego’s pretrial motion to suppress evidence and his conviction for transporting marijuana for sale but vacated his conviction for possessing the same marijuana on double jeopardy grounds pursuant to S tate v. ChabollaHinojosa , 192 Ariz. 360, ¶¶ 13, 21, 965 P.2d 94, 97, 99 (App. 1998). S tate v. Borrego , No. 2 CA-CR 2008-0141 (memorandum decision filed Nov. 17, 2008). ¶3 Borrego then filed a notice of post-conviction relief requesting the appointment
of counsel to assist him in asserting a claim of ineffective assistance of counsel. Postconviction counsel subsequently filed a “notice of no colorable claim” pursuant to Rule 32.4(c). The trial court denied Borrego’s request to appoint different Rule 32 counsel but granted him leave to “file his own claim to address any relief he believes he has.” ¶4 In Borrego’s pro se “supplemental briefing” in support of his request for relief,
he asserted that trial and appellate counsel had been ineffective in failing to raise the double jeopardy issue that led this court, sua sponte, to vacate his conviction for possessing marijuana for sale. He requested “an evidentiary hearing to determine the extent of the ineffective assistance of counsel and[,] based thereon[,] how much more of a mitigator should be afforded defendant.” He also sought—and currently seeks—a resentencing,
“based upon 50% of his charges [having] evaporat[ed].” By implication, Borrego suggested that, absent the overlapping count of possessing the same marijuana he was convicted of transporting for sale, he would or should have received a mitigated sentence on the transportation count. Rejecting that contention, the trial court denied relief summarily. ¶5 To demonstrate a colorable claim of ineffective assistance of counsel, a
defendant must show both that counsel’s performance fell below prevailing professional norms and that the deficient performance prejudiced the defense. S trickland v. Washington , 466 U.S. 668, 687 (1984); S tate ex rel. Thomas v. Rayes, 214 Ariz. 411, ¶ 10, 153 P.3d 1040, 1042 (2007); B ennett, 213 Ariz. 562, ¶ 21, 146 P.3d at 68. Borrego made neither showing here. Moreover, even if we assumed counsel’s performance had been deficient, Borrego failed to show any prejudice that was not already rectified on appeal when we vacated his redundant conviction and sentence. ¶6 Had the vacated conviction been for an unrelated felony, wholly separate from
the transportation charge, Borrego’s assertion of prejudice could theoretically have some merit. But the reason the two convictions offended double jeopardy was that they arose from exactly the same conduct comprising essentially a single transaction. B orrego , No. 2 CA-CR 2008-0141, ¶ 16. Consequently, vacating one of the two convictions did nothing to dispel what Borrego characterizes as a “cloud of guilt” occasioned by the second conviction. ¶7 Nor are we persuaded that the conviction for possession had any effect on Borrego posited in his “supplemental
Borrego’s original sentence for transportation.
briefing” below that the trial court had imposed his concurrent, presumptive sentences after
finding one aggravating and one mitigating factor that “cancelled out each other to result in a presumptive sentence.” The court had found in aggravation that “Defendant committed the offense for pecuniary gain” and, in mitigation, had found his “service to country.” Neither of these circumstances was in any way affected by the elimination of one of the two counts with which Borrego had been charged and convicted, making a resentencing both unnecessary and unwarranted. ¶8 By denying post-conviction relief, the trial court tacitly communicated its view
that Borrego’s presumptive term remained the appropriate sentence for his having transported over two hundred pounds of marijuana for sale. If the trial court would have imposed the same sentence in any event, Borrego is unable to demonstrate any prejudice resulting from counsel’s failure to object to the possession charge before the conviction was reversed on appeal. ¶9 We find no abuse of the trial court’s discretion in summarily denying post-
conviction relief. Although we grant the petition for review, we deny relief.
_ ______________________________________ J. WILLIAM BRAMMER, JR., Judge CONCURRING:
_______________________________________ PETER J. ECKERSTROM, Presiding Judge
_______________________________________ GARYE L. VÁSQUEZ, Judge 4