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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA, Respondent

,

v.

RAFAEL ANGEL JARAMILLO, Petitioner

.

No. 1 CA

- CR 15

- 0671 PRPC

Petition for Review from the Superior Court in Maricopa County

No s. CR2008

- 030698

- 001 CR2008

- 031235

- 001 The Honorable Hugh E. Hegyi

, Judge

REVIEW GRANTED; RELI EF DENIED

COUNSEL

Maricopa County Attorney’s Office , Phoenix By Gerald R. Grant Counsel for Respondent

Robert J. Campos & Associates PLC
, Phoenix By Robert J. Campos Counsel for PetitionerSTATE v. JARAMILLO Decision of the Court

2 MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court, in which Judge Kenton D. Jones and Judge Donn Kessler 1 joined.

D O W N I E
, Judge :

¶1 Rafael Angel Jaramillo petitions for review from the dismissal of his petition for post

- conviction relief ( “ PCR ” ) filed in CR 2008

- 031235 pursuant to Arizona Rule of Criminal Procedure 32. 2 For the follo wing

reasons, we grant review but deny relief.

¶2 A jury found Jaramillo guilty of six counts of armed robbery, six counts of kidnapping, and one count of misconduct involving weapons. After finding that Jaramillo had two historical prior felony convictions, the court sentenced him to presumptive concurrent terms of 15.75 years’ imprisonment for the armed robbery and kidnapping convictions. The court imposed a presumptive concurrent ten

- year term for the miscon duct involving weapons offense. On direct appeal, this C ourt affirmed Jaramillo’s convictions and sentences, and the mandate issued on December 8, 2011. State v. Jaramillo , 1 CA

- CR 10

- 0722, 2011 WL 3211083 (Ariz. App. July 28, 2011) (mem. decision).

¶3 Jaramillo filed a notice for PCR on January 1 8, 2012

. In the ensuing p etition , he argued

, inter alia , that his appellate counsel was ineffective by failing to raise, on appeal, “the trial court’s finding that the State’s pretrial identification of [Jaramillo] was not unduly suggestive.” After an ev identiary hearing, the superior court determined t he pretrial identification was not unduly suggestive and also concluded Jaramillo’s filing was untimely. The court dismissed his petition, and this timely petition for review followed.

1 The Honorable Donn Kessler, Retired Judge of the Arizona Court of Appeals, Division One, has been authorized to sit in this matter pursuant to Article VI, Section 3 of the Arizona Constitution.

2 Jaramillo does not challenge his convictions in CR 2008

- 030698. Accordingly, we address only the proceedings in CR 2008

- 031235.STATE v. JARAMILLO Decision of the Court

3 ¶4 “We will not dist urb a trial court’s ruling on a petition for post

- conviction relief absent a clear abuse of discretion.” State v. Swoopes
, 216 Ariz. 390, 393, ¶ 4 (App. 2007). We will affirm the trial court’s ruling if legally correct for any reason. State v. Perez
, 141 Ariz. 459, 464 (1984); State v. Cantu , 116 Ariz. 356, 358 ( App. 1977).

¶5 We assume for the sake of argument that Jaram illo’s PCR filings were timely. The relevant substantive inquiry , then, is whether appellate counsel’s failure to raise th e pretrial identification issue on appeal fell below objectiv ely reasonable standards , causing prejudice to Jaramillo. See Strickland v. Washington , 466 U.S. 668 (1984); State v. Nash , 143 Ariz. 392 (1985). To raise a colorable claim of ineffective assis tance of appellate counsel, “ the petitioner must offer evidence of a reasonable p robability that but for counsel’ s unprofessional errors, the outcome of the appeal would have been different.” State v. Herrera , 183 Ariz. 642, 647 (App. 1995).

¶6 At the evid entiary hearing, Jaramillo offered n o evidence that appellate counsel’s failure to raise the line

- up issue amounted to an “unprofessional error” or that, had counsel raised the issue, the outcome of his direct appeal would have been different

. Although Ja ramillo’s lawyer argued that appellate counsel was ineffective, arguments of counsel are not evidence. State v. King , 110 Ariz. 36, 42 (1973). Instead of focusing on appellate counsel’s conduct, Jaramillo presented testimony from a retired police officer

, who opined that the line

- up was unduly suggestive. But

a bsent evidence that appellate counsel’s failure to raise the i ssue fell below prevailing professional norms and would have changed the outcome on direct appeal, the ine ffective assistance of counse l claim predicated on th at issue fails. Moreover, the superior court’s r uling on the substantive issue

— wh ich it explained in some depth

— is supported by the record and applicable law, particular ly given the abuse of discretion standard applicable to su ch rulings. See State v. Prion , 203 Ariz. 157, 160, ¶ 14 (200 2 ).

CONCLUSION

¶7 For the foregoing reasons, we grant review but deny relief.