NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

JOHN LIMON FRAUSTO, Petitioner.

No. 1 CA-CR 13-0169 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2003-010172-001 DT

The Honorable Andrew G. Klein, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Diane Meloche

Counsel for Respondent

John Limon Frausto, Tucson

Petitioner

MEMORANDUM DECISION

Presiding Judge Maurice Portley delivered the decision of the Court, in 

which Judge Michael J. Brown and Chief Judge Diane M. Johnsen joined.
STATE v. FRAUSTO

Decision of the Court

2

P O R T L E Y, Judge:

¶1 Petitioner John Limon Frausto petitions this court for review 

from the dismissal of his petition for post-conviction relief. Presiding Judge

Maurice Portley, Judge Michael J. Brown and Chief Judge Diane M. Johnsen

have considered the petition for review and, for the reasons stated, grant 

review and deny relief.

¶2 A jury convicted Frausto of armed robbery and he was 

sentenced to prison for twenty-two years. We affirmed his conviction and 

sentence on direct appeal. State v. Frausto, 1 CA-CR 05-0478 (Ariz. App. 

Dec. 19, 2006). Frausto now seeks review of the summary dismissal of three 

pleadings the trial court considered as his third successive petition for postconviction relief. We have jurisdiction pursuant to Arizona Rule of 

Criminal Procedure (“Rule”) 32.9(c). 

¶3 The petition for review properly presents two issues. Frausto 

first argues his trial counsel was ineffective when her failure to properly 

advise him of the risks and benefits of accepting a plea offer versus 

proceeding to trial caused him to reject a favorable plea offer. He further 

argues counsel was ineffective when she failed to submit unidentified 

mitigating evidence for the trial court's consideration at sentencing.

¶4 Frausto could have raised both issues in a prior petition for 

post-conviction relief. Any claim a defendant raised or could have raised 

in an earlier post-conviction relief proceeding is precluded. Ariz. R. Crim. 

P. 32.2(a). While Frausto contends he may raise these issues pursuant to 

Rule 32.1(e) based on newly discovered evidence, he does not identify any 

newly discovered evidence. Further, he does not allege nor prove there was

evidence that existed at the time of trial that he did not discover until after 

trial, nor does he allege or prove he was diligent in discovering the evidence 

and bringing it to the court's attention. See State v. Bilke, 162 Ariz. 51, 52-53, 

781 P.2d 28, 29-30 (1989). A defendant who seeks post-conviction relief 

based on newly discovered evidence must establish these as well as other 

factors. Id. Therefore, Frausto has failed to state a colorable claim for relief 

based on newly discovered evidence. Accordingly, we deny review of the 

two issues related to the alleged ineffective assistance of his trial lawyer.

¶5 The petition for review also presents additional issues, but

Frausto did not raise those issues in his petition for post-conviction relief 

filed with the trial court. A petition for review may not present issues not 

first presented to the trial court. Ariz. R. Crim. P. 32.9(c)(1)(ii); see State v. 
STATE v. FRAUSTO

Decision of the Court

3

Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991). As a result, we will 

not consider his additional issues.

¶6 We grant review of the petition for review, and deny relief.