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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

RAFAEL ANGEL JARAMILLO, Petitioner.

No. 1 CA-CR 15-0671 PRPC

Petition for Review from the Superior Court in Maricopa County

Nos. CR2008-030698-001

 CR2008-031235-001

The Honorable Hugh E. Hegyi, Judge

REVIEW GRANTED; RELIEF 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 Petitioner
STATE 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 Kessler1 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 following 

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 misconduct 

involving weapons offense. On direct appeal, this Court 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 18, 2012. In the 

ensuing petition, 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 evidentiary hearing, the superior court determined the 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 disturb 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 Jaramillo’s PCR 

filings were timely. The relevant substantive inquiry, then, is whether 

appellate counsel’s failure to raise the pretrial identification issue on appeal 

fell below objectively 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 assistance of appellate 

counsel, “the petitioner must offer evidence of a reasonable probability 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 evidentiary hearing, Jaramillo offered no 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 Jaramillo’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 

absent evidence that appellate counsel’s failure to raise the issue fell below 

prevailing professional norms and would have changed the outcome on 

direct appeal, the ineffective assistance of counsel claim predicated on that

issue fails. Moreover, the superior court’s ruling on the substantive issue 

— which it explained in some depth — is supported by the record and 

applicable law, particularly given the abuse of discretion standard 

applicable to such rulings. See State v. Prion, 203 Ariz. 157, 160, ¶ 14 (2002). 

CONCLUSION

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