STATE OF ARIZONA v. RENIE VARELA VALENCIA

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FILED BY CLERK NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND M AY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24. FEB 26 2009 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. RENIE VARELA VALENCIA, Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2008-0318-PR DEPARTMENT A MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR-20052947 Honorable Frank Dawley, Judge Pro Tempore REVIEW GRANTED; RELIEF DENIED Barbara LaWall, Pima County Attorney By Jacob R. Lines Barton & Storts, P.C. By Brick P. Storts, III H O W A R D, Presiding Judge. Tucson Attorneys for Respondent Tucson Attorneys for Petitioner Following a jury trial, Renie Varela Valencia was convicted of first-degree ¶1 burglary and theft by control of property valued at $25,000 or more. The trial court sentenced him to presumptive, concurrent prison terms of 15.75 years for each conviction. This court affirmed the convictions and sentences on appeal. State v. Valencia, No. 2 CACR 2006-0067 (memorandum decision filed Feb. 26, 2007). In this petition for review, Valencia challenges the trial court s denial of his subsequent petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. Although we accept review, we deny relief. In his petition below, Valencia claimed he had received ineffective assistance ¶2 from his trial counsel based on counsel s asserted failure to interview witnesses and have DNA 1 evidence independently verified. The trial court summarily denied Valencia s petition, finding neither deficient performance by counsel nor prejudice. See Strickland v. Washington, 466 U.S. 668, 688, 693 (1984) (defendant claiming ineffective assistance of counsel must prove that attorney failed to provide reasonably effective assistance under prevailing professional norms and that any deficient performance actually had an adverse effect on the defense ). We will not disturb a trial court s ruling on a petition for postconviction relief absent a clear abuse of discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We find none here. 1 Deoxyribonucleic acid. 2 ¶3 Even assuming, arguendo, counsel s omissions constituted deficient performance, the trial court did not abuse its discretion by finding a lack of prejudice. Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim. State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006). Valencia failed to explain how counsel s failure to interview the available witnesses negatively affected his defense, and the court specifically noted its memory that defense counsel was well prepared and effectively cross-examined the witnesses. Valencia also failed to show that additional DNA testing would have yielded different or more favorable results than those presented at trial. ¶4 disagree. To the extent Valencia suggests prejudice should be presumed in this case, we [I]f counsel entirely fails to subject the prosecution s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable. United States v. Cronic, 466 U.S. 648, 659 (1984). But an attorney s failure must be complete in order for prejudice to be presumed. State v. Glassel, 211 Ariz. 33, ¶ 63, 116 P.3d 1193, 1211 (2005), quoting Bell v. Cone, 535 U.S. 685, 697 (2002) (emphasis in Glassel). That was not the case here. ¶5 Nor do we agree that, by denying his request for an evidentiary hearing, the trial court denied [Valencia] the opportunity to prepare a proper record for this Court to review. Summary disposition is appropriate when a defendant s claims present no material issue of fact or law which would entitle the defendant to relief and no purpose would be 3 served by any further proceedings. See Ariz. R. Crim. P. 32.6(c). Valencia has identified no potential evidence that could have bolstered his claim of prejudice. Accordingly, although we grant review of Valencia s petition, we deny relief. JOSEPH W. HOWARD, Presiding Judge CONCURRING: JOHN PELANDER, Chief Judge PHILIP G. ESPINOSA, Judge 4

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