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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MIGUEL RAMIREZ, Petitioner.

No. 1 CA-CR 16-0552 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2013-114320-001 DT

The Honorable Pamela D. Svoboda, Judge

REVIEW GRANTED; RELIEF 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 8-15-2017
STATE 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 offense—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 sentences were affirmed, 

with a correction to presentence incarceration credit. State v. Ramirez, 1 CACR 14-0119, 2014 WL 7277823 (Ariz. App. Dec. 23, 2014) (mem. decision).

¶3 Ramirez filed a timely petition for post-conviction relief,

claiming ineffective assistance 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 alleged five years’ verbal 

offer from the State into writing. The superior court summarily 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 

evidentiary 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. See generally State v. Lemieux, 137 Ariz. 143, 146, 669 P.2d 

121, 124 (App. 1983). In review of the entire record, including the record on 

appeal, and transcripts therefrom, Ramirez’s claims of ineffective assistance 

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 is a prohibited possessor because of his 

status as a felon and probationer. A Donald advisement was also given, 

Ramirez was aware of the range of sentences if he proceeded to trial, and 

the offer remained open until the next day. Ramirez expressed a desire to 

restore his rights to carry a weapon, and discussed his willingness 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 Department of 

Corrections. 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 doing 

more prison time in hopes of trying to get your gun rights restored faster. 

Does that make sense?” Ramirez responded, “Yeah.” The next day,

another 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 selfserving 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 673, 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 (7th Cir. 1991) (holding that the 

defendant’s self-serving affidavit regarding a plea offer was not sufficient 

alone to show prejudice), superseded by statute on other grounds as stated in 

United States v. Bejarano, 751 F.3d 280, 287 n.5 (5th Cir. 2014). Ramirez does 

not cite any evidence in the record 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, which 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 Donald, 198 Ariz. at 413, ¶ 16, 

10 P.3d at 1200. Ramirez was fully informed of the charge and the 
STATE v. RAMIREZ

Decision of the Court

4

consequences. There was no formal offer for five years made by the State, 

and counsel was 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 to 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 we grant review, we deny relief.