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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

MIGUEL RAMIREZ
, Petitioner

.
No. 1 CA

- CR 16

- 0552 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR 2013

- 114320

- 001 DT The Honorable Pamela D. Svoboda
, Judge

REVIEW GRANTED; RELI EF DENIED

COUNSEL
Maricopa County Attorney ’ s Office , Phoenix By Jeffrey R. Duvendack Counsel for Respondent

Miguel Ramirez
, Eloy Petitioner

MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge James P. Beene joined. FILED 8-15-2017STATE v. RAMIREZ Decision of the Court

2 W I N T H R O P , Judge:

¶1 Miguel Ramirez petitions this court for review of the dismissal of his petition for post

- conviction relief. We have considered the petition for review and, for the reasons stated, grant review but deny relief.

¶2 Ramirez was convicted by a jury of misconduct involving weapons, a class four felony. He was sentenced to the presumptive term of
ten years in prison on the substantive of fense

— having been on probation
, with two prior convictions for enhancement

— and six months ’ imprisonment on each probation count, to run consecutive to each other and the substantive offense

. His conviction and sentenc es were affirmed
, with a correction to presentence incarceration credit

. State v. Ramirez , 1 CA

CR 14

- 0119 , 2014 WL 7277823 (Ariz. App. Dec. 23, 2014) (me m. decision)

. ¶3 Ramirez filed a timely petition for post

- conviction relief
, claiming ineffective assist ance of trial counsel under State v. Donald
, 198 Ariz. 406, 10 P.3d 1193 (App. 2000). Ramirez claimed his counsel did not explain the elements of the charge to him or the evidence against him , failed to advise him to take the plea, and never put an allege d five years’ verbal offer from the State into writing . The superior court su mmarily dismissed his petition.

¶4 In his petition for review, Ramirez reiterates his claim in principle, but now asserts that his attorney affirmatively advised him not to take the plea, because the offers could get better and she could argue to the jury that the State had only circumstantial evidence to convict him at trial. We decline to consider matters and evidence not appropriately presented below. Issues not presented to the superior court may not be presented in the petition for review. See Ariz. R. Crim. P. 32.9 (c) (1); State v. Wagstaff , 161 Ariz. 66, 71, 775 P.2d 1130, 1135 (App. 1988)
, approved as modified
, 164 Ariz. 485 , 794 P.2d 118 (1990); State v. Ramirez , 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980).

¶5 We review the superior court’s decision whether to conduct an evidentiary hearing for an abuse of discretion. State v. D’Ambrosio , 156 Ariz. 71, 73 , 750 P.2d 14, 16 (1988). Ramirez contends he is entitled to an

e videntiary hearing based upon his uncontested allegations. The court views allegations in a petition in light of the entire record to determine if a claim is colorable. S ee generally S tate v. Lemieux , 137 Ariz. 143, 146, 66 9 P.2d 121, 124 (App. 1983). I n re view of the entire record, including the record on appeal, and transcripts therefrom, Ramirez ’ s claims of ineffective assis tance of counsel have no merit.STATE v. RAMIREZ Decision of the Court

3 ¶6 The trial court conducted a settlement conference
, at which the charge, including the evidence needed to convict, was discussed in detail. Ramirez was aware the evidence would show that he had a gun in a holster on his hip
, and that he i s a prohibited possessor because of his status as a felon and probat ioner

. A Donald advisement was also given, Ramirez was aware of the range of sentences if he proceeded to trial, and the offer r emained open until the next day. Ramirez expressed a desire to
restore his rights to carry a weapon, and discussed his willing ness to admit guilt if he were to be given probation, or intensive probation. The State did refer to a possible offer of five years in prison, flat time, but did not make a formal offer. The actual offer was to plead to the charge with a sentencing range of 4.5 to 7.5 years ’ imprisonment in the Arizona D epartment of C orrections. The State also indicated it would be willing to agree to
concurrent terms on all his cases.

¶7 The record shows the defense attorney at Ramirez’ s conference encouraged him to ask questions and helped him to understand what he was facing. Settlement counsel stated, “I hate to see you d o ing more prison time in hopes of trying to get your gun rights restored faster. Does that make sense? ” Ramirez respon d ed, “Yeah .” The next day
, an other Donald advisement was given
, and Ramirez rejected the offer.

¶8 To show ineffective assistance of counsel ( “ IAC ” ), Ramirez must show both deficient performance by counsel and prejudice. Strickland

v

. Washington
, 466 U.S. 668, 687 (1984). The court is not bound by the self

serving assertions of Ramirez, especially when clearly contradicted in the record, and in this instance, they are not enough to require an evidentiary hearing. See

, e.g., State v. Goswick , 142 Ariz. 582, 585, 691 P.2d 67 3, 676 (1984) ( finding
, in the context of an IAC claim, no sufficient factual basis to support an allegation based on the self

- serving affidavit of the defendant); see also Toro v. Fairman , 940 F.2d 1065 , 1068 (7 th Cir. 1991) (holding that the defendant’s self

- serving affidavit regarding a plea offer was not suffici ent alone to show prejudice)
, superseded by statute o n other grounds as stated in United States v. B ejarano , 751 F.3d 280, 287 n.5 (5th Cir. 2014)

. Ramirez does not cite any evidence in the reco rd supporting his claim that his attorney gave him erroneous advice that unduly influenced his decision to proceed to trial

. His counsel was obviously attempting to obtain a better result through negotiation, wh ich is supported by the record.

¶9 To show IAC during plea negotiations, a petitioner must show in part that his attorney led him to make an uninformed decision to reject a plea bargain and proceed to trial. See D onald , 198 Ariz. at 413, ¶ 16, 10 P.3d at 1200. Ramirez was fully informed of the charg e and theSTATE v. RAMIREZ Decision of the Court

4 consequences. There was no formal offer for five years made by the State
, and counsel wa s not ineffective for failing to seek this particular agreement

. See State v. Vallejo , 215 Ariz. 193, 195, ¶ 6, 158 P.3d 916 , 918 (App. 2007 ) (declining to extend Donald t o nonexistent plea agreements). Nor does Ramirez’s bare claim that his attorney did not advise him to take the plea create the implication of either deficient performance or prejudice.

¶10 Accordingly, although w e grant review , we deny relief.