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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FREDDIE GENE CRUZ, Petitioner.

No. 1 CA-CR 16-0405 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2013-426904-001

The Honorable Carolyn K. Passamonte, Judge Pro Tempore

REVIEW GRANTED; RELIEF GRANTED

COUNSEL

Maricopa County Attorney's Office, Phoenix

By Diane Meloche

Counsel for Respondent

Freddie Gene Cruz, San Luis

Petitioner

MEMORANDUM DECISION

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

Presiding Judge Diane M. Johnsen and Judge Jennifer B. Campbell joined

FILED 9-26-2017
STATE v. CRUZ

Decision of the Court

2

B R O W N, Judge:

¶1 Petitioner Freddie Gene Cruz petitions this court for review 

from the dismissal of his petition for post-conviction relief. Because Cruz 

has raised a colorable claim of ineffective assistance of trial counsel, we 

grant review and grant relief.

¶2 Cruz was convicted by a jury of possession or use of 

dangerous drugs and possession of drug paraphernalia, and was sentenced 

to prison. Prior to trial, Cruz's attorney filed a "Motion to Suppress Physical 

Evidence and Defendant's Statements" ("motion to suppress"), and 

requested an evidentiary hearing, but the superior court summarily denied 

the motion without a hearing. This court affirmed his convictions and 

sentences on appeal in State v. Cruz, 1 CA-CR 14-0272, 2015 WL 3536709

(Ariz. App. June 5, 2015) (mem. decision).

1

¶3 Cruz filed a timely pro se petition for post-conviction relief in 

the superior court claiming ineffective assistance of trial counsel relating to 

the motion to suppress. After briefing, the superior court dismissed his 

petition. Cruz then filed a timely petition for review to this court reiterating 

his claims of ineffective assistance of trial counsel, including failure to

obtain an evidentiary hearing on the suppression issues, cite applicable case 

law, fully argue that his detention pursuant to a city code violation was 

illegally prolonged, and assert that search of his pocket, when he agreed to 

a pat-down for weapons, exceeded the scope of what is permitted by Terry 

v. Ohio, 391 U.S. 1 (1967).

¶4 In the superior court, Cruz attached an affidavit to his petition 

asserting his version of the facts pertinent to the search and seizure. Cruz 

claimed the officer asked for permission to conduct a pat-down for 

weapons, and he agreed to that request only. The officer then reached into

Cruz's coin pocket, pulled out a small baggie, proceeded to question him

about what was in the bag, and eventually arrested him for a drug offense.

¶5 "A decision as to whether a petition for post-conviction relief 

presents a colorable claim is, to some extent, a discretionary decision for the

trial court." State v. D'Ambrosio, 156 Ariz. 71, 73 (1988). However, when 

 

1 This court noted that Cruz did not challenge the lack of an 

evidentiary hearing on appeal. Cruz, 1 CA-CR 14-0272, at *1 n.2, ¶ 4.

Additionally, Cruz did not raise ineffective assistance of appellate counsel 

in his petition for post-conviction relief or petition for review, so we do not 

address that issue. 
STATE v. CRUZ

Decision of the Court

3

doubt exists, an evidentiary hearing should be held. Id.; see Ariz. R. Crim. 

P. 32.8(a) ("The defendant shall be entitled to a hearing to determine issues 

of material fact, with the right to be present and to subpoena witnesses.").

¶6 To prevail on a claim of ineffective assistance of counsel, a 

"defendant must show that counsel's representation fell below an objective 

standard of reasonableness" as defined by "prevailing professional norms."

See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). A defendant must 

also "show that the deficient performance prejudiced the defense." Id. at 

687. To establish prejudice, the "defendant must show that there is a 

reasonable probability that, but for counsel's unprofessional errors, the 

result of the proceeding would have been different." Id. at 694. To show 

prejudice from counsel's failure to file a motion to suppress evidence, a 

defendant must show there is a reasonable likelihood the trial court would 

have granted the motion and it would have changed the result of the trial

proceedings. State v. Berryman, 178 Ariz. 617, 622 & n.3 (App. 1994).

"[S]trategic choices made after thorough investigation of law and facts . . . 

are virtually unchallengeable . . . ." Strickland, 466 U.S. at 690.

¶7 Some of Cruz's allegations may fall into the category of 

"strategic choices" by counsel; however, Cruz's allegation that his counsel 

failed to pursue his entitlement to an evidentiary hearing on the 

suppression issues cannot be summarily disregarded as "strategic." Neither 

trial counsel nor the prosecutor informed the court that Cruz was entitled to 

a hearing on his motion to suppress pursuant to Rodriguez v. Arellano, 194 

Ariz. 211 (App. 1999), which holds that once defendants establish a 

warrantless search occurred, they have met their prima facie burden under 

Arizona Rule of Criminal Procedure 16.2(b), "trigger[ing] the State's burden 

of proving the lawfulness of the acquisition of the challenged evidence." 

194 Ariz. at 215, ¶ 12. Additionally, trial counsel failed to assert entitlement 

to a hearing pursuant to State v. Peterson, 228 Ariz. 405 (App. 2011), which 

holds that a defendant may be entitled to a hearing for an alleged Miranda

violation by making "allegations which, if proved, would entitle him or her 

to suppression." 228 Ariz. at 408, 410, ¶¶ 9, 15.

¶8 In the motion to suppress, Cruz's trial counsel alleged a

warrantless search and a Miranda violation. Because Cruz was entitled to 

an evidentiary hearing on the suppression issues raised, the trial court erred 

in summarily denying the motion without first conducting an evidentiary 

hearing. Trial counsel, however, failed to object to the court's ruling.

¶9 As a result, the State was not required to produce evidence to 

meet its burden of justifying a warrantless search and demonstrating why 
STATE v. CRUZ

Decision of the Court

4

Cruz's statements did not violate Miranda. See Ariz. R. Crim. P. 16.2(b). 

And Cruz should have been given the opportunity to challenge the 

reliability of the State's evidence. Thus, we cannot view trial counsel's 

decision to forego Cruz's right to an evidentiary hearing as strategic. See 

Rodriguez, 194 Ariz. at 212 n.1, ¶ 3 (explaining that "the obligation to prove 

a prima facie case for suppression is imposed by Rule 16.2 and attaches at 

the hearing, not the motion, stage"). As such, trial counsel's failure to 

affirmatively assert entitlement to an evidentiary hearing, and object to the 

lack thereof, constitutes a colorable claim of ineffective assistance of 

counsel. See State v. Runningeagle, 176 Ariz. 59, 63 (1993) (stating that

defendants are entitled to an evidentiary hearing on a petition for postconviction relief when they "present[] a colorable claim—one that, if the 

allegations are true, might have changed the outcome"). Because Cruz 

presents a colorable claim, he is entitled to a hearing on his petition for postconviction relief under Arizona Rule of Criminal Procedure 32.8.2

¶10 Accordingly, we grant relief and remand to the superior court

for further proceedings consistent with this decision.

 

2 Given this analysis, we deny as moot Cruz's Request to File 

Supplemental Authority.