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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RAYMOND JAMES MERCADO, Petitioner.

No. 1 CA-CR 13-0745 PRPC

Appeal from the Superior Court in Maricopa County

No. CR2010-125243-001DT

The Honorable Susan M. Brnovich, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Diane Meloche

Counsel for Respondent

Raymond James Mercado, Buckeye

Petitioner
STATE v. MERCADO

Decision of the Court

2

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined.

 

B R O W N, Judge:

¶1 Raymond James Mercado petitions this court for review from 

the dismissal of his petition for post-conviction relief. We have considered 

the petition for review and, for the reasons stated, grant review and deny 

relief. 

¶2 A jury convicted Mercado of first degree burglary and four 

counts of kidnapping. The trial court sentenced Mercado to an aggregate 

term of twenty-one years imprisonment and we affirmed his convictions 

and sentences on direct appeal. State v. Mercado, 1 CA-CR 11-0245, 2011 WL 

6747417 (Ariz. App. Dec. 22, 2011) (mem. decision). Mercado filed a pro se 

petition for post-conviction relief after his counsel found no colorable 

claims for relief. The trial court summarily dismissed the petition and 

Mercado now seeks review. 

¶3 Mercado argues the trial court erred when it ordered two of 

his sentences to run consecutively to the other sentences. He also presents 

issues regarding the legality and validity of the victims’ identification of 

him at trial and whether the prosecutor coached the victims. Both of these 

issues are precluded. We addressed the sentencing issue on direct appeal 

and found no error. Mercado at *6, ¶ 11. Mercado could have raised the 

identification issues on direct appeal. Any claim a defendant raised or 

could have raised on direct appeal is precluded. Ariz. R. Crim. P. 32.2(a)(1). 

¶4 Mercado also presents several claims of ineffective assistance 

by his trial counsel. To state a colorable claim of ineffective assistance of 

counsel, a defendant must show counsel’s performance fell below 

objectively reasonable standards and the deficient performance prejudiced 

the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). To 

establish prejudice, a defendant must demonstrate there is a “reasonable 

probability that but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Id. at 694. 
STATE v. MERCADO

Decision of the Court

3

¶5 Mercado argues his counsel was ineffective for failing to

object to consecutive sentences. Because we found no error on direct appeal

regarding the imposition of consecutive sentences, Mercado has failed to 

present a colorable claim of ineffective assistance on that basis. Mercado 

also argues his counsel was ineffective when counsel failed to challenge the 

legality and validity of the victims’ identifications of Mercado at trial. 

Mercado has failed to present a colorable claim for relief because Mercado 

concedes he was at the scene with his accomplice when the incident 

occurred. He offers nothing to suggest that his identity was otherwise at 

issue at any time.

1 

¶6 Finally, Mercado argues his counsel was ineffective when 

counsel failed to move to suppress statements Mercado made to law 

enforcement officers. Mercado has failed to present a colorable claim for 

relief because he does not identify the statements at issue. Furthermore, he 

fails to explain when or specifically to whom he made the statements, 

whether the court admitted them at trial, and why counsel should have 

sought to suppress them. Mercado merely suggests that the statements 

were “involuntary.”

¶7 If Mercado meant to refer to statements he made to law 

enforcement officers at the scene before officers read him his Miranda2

rights, he also failed to present a colorable claim of ineffective assistance

because we found no error on direct appeal regarding the admission of 

those statements. Mercado at *10, ¶ 19. If Mercado intended to refer to postMiranda statements he made, he similarly failed to present a colorable claim 

of ineffective assistance because the post-Miranda admissions we identified 

 

1 Identity was never an issue in this case. Mercado remained inside 

the residence with the victims until police ordered him to come out. 

Mercado at *3, ¶ 4. Mercado’s primary complaint about the identifications 

is that all the victims claimed they did not know Mercado prior to the 

incident, yet they allegedly all knew his name and/or referred to him by 

name at trial. The victims’ knowledge of Mercado’s name by the time of 

trial does not, as claimed by Mercado, suggest that the prosecutor 

improperly coached the victims nor does it otherwise raise any question 

about the validity of their identification of Mercado as one of the two people 

who committed the offenses. Mercado offers nothing to suggest the victims 

falsely claimed to know him prior to the incident, or that they identified 

Mercado for any reason other than they simply recognized him as one of 

the perpetrators.

2 Miranda v. Arizona, 384 U.S. 436 (1966)
STATE v. MERCADO

Decision of the Court

4

on direct appeal were cumulative to his pre-Miranda admissions. Mercado

at *3-4, ¶¶ 4-6. In both his pre- and post-Miranda statements, Mercado 

admitted he and his accomplice went to the residence to rob the people

inside. Id. Therefore, even if counsel had successfully excluded the postMiranda admissions, the jury would still have heard Mercado’s pre-Miranda

admissions. 

¶8 While the petition for review presents additional issues, 

Mercado did not raise those issues in the petition for post-conviction relief

he filed below. A petition for review may not present issues not first 

presented to the trial court. State v. Ramirez, 126 Ariz. 464, 467, 616 P.2d 924, 

927 (App. 1980); State v. Wagstaff, 161 Ariz. 66, 71, 775 P.2d 1130, 1135 (App. 

1988); State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991); Ariz. 

R. Crim. P. 32.9(c)(1)(ii).

¶9 Based on the foregoing, review is granted and relief is denied.