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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

NHA TRAN, Petitioner.

No. 1 CA-CR 19-0268 PRPC

Petition for Review from the Superior Court in Navajo County

No. CR 201100718

The Honorable Robert J. Higgins, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Navajo County Attorney’s Office, Holbrook

By Michael R. Shumway

Counsel for Respondent

Nha Tran, Winslow

Petitioner

FILED 12-24-2019
STATE v. TRAN

Decision of the Court

2

MEMORANDUM DECISION

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

Presiding Judge Jennifer B. Campbell and Judge Lawrence F. Winthrop 

joined.

B R O W N, Judge:

¶1 Nha Tran petitions this court for review from the dismissal of 

his petition for post-conviction relief filed pursuant to Arizona Rule of 

Criminal Procedure 32. We have considered the petition for review, and, 

for the reasons stated, grant review and deny relief.

¶2 After Tran pleaded guilty to attempted transportation of 

marijuana for sale, the superior court suspended the imposition of his 

sentence and imposed probation. The probation department twice 

petitioned to revoke Tran’s probation, and both times he admitted to 

violating one or more conditions of probation. After the first admission, the 

court reinstated probation. After the second admission, the court sentenced 

Tran to an aggravated prison term of seven years. 

¶3 Tran timely initiated a request for post-conviction relief

raising the following claims: (1) his sentence was contrary to law because 

the superior court did not grant him any presentence incarceration credit;

and (2) his revocation counsel was ineffective because she never complied 

with the court’s order to submit a brief regarding Tran’s entitlement to 

credit and because she did not meaningfully present any mitigating 

information on his behalf. 

¶4 The superior court held an evidentiary hearing on Tran’s 

petition. After considering the testimony of Tran and his former attorney, 

exhibits, and the parties’ closing briefs, the court awarded Tran 172 days of 

presentence incarceration credit but otherwise denied relief. Tran timely 

sought review. 

¶5 We will not disturb the superior court’s decision absent an 

abuse of discretion, which is found where the court “makes an error of law 

or fails to adequately investigate the facts necessary to support its decision.” 
STATE v. TRAN

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State v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017). We accept the court’s findings 

of fact unless they are “clearly erroneous.” Id. at ¶ 3.1

¶6 Arizona Revised Statutes § 13-712(B) requires that “[a]ll time 

actually spent in custody pursuant to an offense until the prisoner is 

sentenced to imprisonment for such offense shall be credited against the 

term of imprisonment . . . .” Out-of-state custody that is “pursuant to an 

arrest for an Arizona offense” counts toward the Arizona sentence. State v. 

Mahler, 128 Ariz. 429, 430 (1981). The defendant bears the burden of 

proving entitlement to presentence incarceration credit, State v. Cecena, 235 

Ariz. 623, 625, ¶ 10 (App. 2014), and may raise the issue of insufficient credit 

“at any time,” State v. Ritch, 160 Ariz. 495, 498 (App. 1989).

¶7 In closing briefs submitted after the evidentiary hearing, Tran 

argued he was entitled to 172 days’ credit, and the State argued for 140 

days’ credit. The court agreed with Tran and granted him the 172 days he 

requested. 

¶8 Tran contends on review that he actually deserves 251 days’ 

credit, and the State responds the superior court should have awarded only 

140 days’ credit. Neither persuades us to disturb the superior court’s 

determination. Tran seeks credit for time incarcerated in California, but he 

fails to show he was held in custody pursuant to an Arizona warrant rather 

than a California charge. See Cecena, 235 Ariz. at 625–26, ¶ 10. We do not 

address the State’s counterargument because it failed to present the issue in 

a timely petition or cross-petition for review. See Ariz. R. Crim. P. 

32.9(c)(A)–(B). 

¶9 Tran also contends he should have prevailed on his 

ineffective assistance claim, pointing to evidence his revocation attorney 

never briefed the court on Tran’s entitlement to presentence incarceration 

credit as directed, failed to provide mitigating facts, and advised Tran to 

admit questionable probation violations in the first place. To succeed on an 

ineffective assistance of counsel claim, a defendant “must show that 

counsel’s performance fell below reasonable standards and that the 

1 The superior court declined to consider Tran’s argument that counsel’s 

ineffective assistance led him to admit disputable probation violations in 

the first place because Tran did not raise that issue prior to the evidentiary 

hearing. We find no abuse of discretion. See State v. Lopez, 223 Ariz. 238, 

240, ¶¶ 6–7 (App. 2009).
STATE v. TRAN

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4

deficient performance prejudiced him.” State v. Roseberry, 237 Ariz. 507, 

509, ¶ 10 (2015). Failing to establish either prong bars relief. State v. Bennett, 

213 Ariz. 562, 567, ¶ 21 (2006).

¶10 The superior court did not abuse its discretion in finding that 

defense counsel’s performance—even if substandard in certain respects—

caused Tran no prejudice. Because the court granted Tran presentence 

incarceration credit after the evidentiary hearing, the failure of his 

revocation attorney to earlier address that issue was ultimately harmless. 

Nor did Tran show a “reasonable probability” he would have received a 

better sentence if his attorney had provided more mitigating circumstances. 

See State v. Lee, 142 Ariz. 210, 214 (1984) (quoting Strickland v. Washington, 

466 U.S. 668, 694 (1984)).

¶11 At the sentencing hearing, the court found the following 

aggravating factors: Tran’s “criminal history, the amount of drugs that 

[were] seized in [the underlying] case, poor performance on probation, 

[and] new offenses in multiple states committed while on felony release.” 

Tran’s attorney proposed the following mitigating facts: Tran was 42 years 

old, married with two children, worked in construction, took responsibility 

for his misconduct, and promised not to get into trouble in the future. The 

court sentenced Tran to an aggravated term after deciding that the 

“aggravating factors outweigh[ed] any mitigators.” 

¶12 Tran asserts that his attorney should have (1) provided more 

specific information about his family relationships and employment, (2) 

mentioned his participation in classes while on probation, and (3) 

emphasized his lack of recent felony arrests. The superior court did not 

abuse its discretion when it concluded that the “record alone,” rather than 

the performance of defense counsel, “led to [Tran’s] aggravated sentence.” 

See State v. Armstrong, 208 Ariz. 345, 354, ¶ 40 (2004) (“We will not find that 

a trial court has abused its discretion unless no reasonable judge would 

have reached the same result under the circumstances.”). The record before 

the superior court, and Tran’s statements at the sentencing hearing, showed 

the purported improvements in his criminal history and his participation 

in classes. Details such as the name of Tran’s employer, the ages of his 

children, and the assistance Tran provided to his parents are unlikely to 

have made a difference in his sentence.

¶13 In his reply to the State’s response, Tran claims that due to his 

limited education and lack of proficiency with the English language, he has 

had difficulty communicating with his counsel. He contends that the 

superior court “did not seem to care” whether he understood the court 
STATE v. TRAN

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5

proceedings. Tran has waived those assertions, however, by failing to raise 

them in his petition for review. See State v. Guytan, 192 Ariz. 514, ¶ 15 (App.

1998) (“Generally an issue raised for the first time in a reply brief is 

waived.”). 

¶14 Accordingly, we grant review and deny relief.