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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

GERARDO ANDRADA-PASTRANO, 

Petitioner. 

No. 1 CA-CR 13-0669 PRPC 

 

Appeal from the Superior Court in Maricopa County 

No. CR 2010-140334-001 

The Honorable Sherry K. Stephens, Judge 

REVIEW GRANTED; RELIEF DENIED 

COUNSEL 

Maricopa County Attorney’s Office, Phoenix 

By Diane Meloche 

Counsel for Respondent

Gerardo Andrada-Pastrano, Florence 

Petitioner
STATE v. ANDRADA-PASTRANO 

Decision of the Court 

2 

MEMORANDUM DECISION 

Judge Patricia A. Orozco delivered the decision of the Court, in which 

Presiding Judge Margaret H. Downie and Judge Maurice Portley joined. 

 

O R O Z C O, Judge: 

¶1 Petitioner, Gerardo Edmundo Andrada-Pastrano, 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 below, grant review and deny relief. 

¶2 Petitioner was convicted of a sexual offense he committed in 

1991 (the 1991 case). This conviction required Petitioner to register as a sex 

offender. In 2010, the State charged Petitioner with two counts of failure to 

register as a sex offender. Petitioner ultimately pled guilty to a class six 

felony, presentment of a false instrument for filing, and the trial court 

placed him on three years' probation. Petitioner filed a pro se petition for 

post-conviction relief of-right after his counsel found no colorable claims. 

The trial court found Petitioner presented colorable claims for relief, 

however, and held an evidentiary hearing. The court denied the petition 

for post-conviction relief at the conclusion of the hearing and Petitioner 

now seeks review. We have jurisdiction pursuant to Arizona Rule of 

Criminal Procedure 32.9(c). 

¶3 In his petition for review, Petitioner argues the factual basis 

to support his plea was insufficient; his trial counsel was ineffective; the 

trial court erred when it refused to appoint an investigator to assist 

Petitioner; he has newly discovered evidence regarding the 1991 case and 

the court improperly limited the scope of the evidentiary hearing. We will 

affirm the trial court’s ruling if it is based on substantial evidence. See State 

v. Sasak, 178 Ariz. 182, 186 (App. 1993). 

¶4 The factual basis required to support a plea may be 

determined from the extended record, which may include presentence 

reports, transcripts from preliminary hearings, proceedings before the 

grand jury, and other sources. See State v. Sodders, 130 Ariz. 23, 25 (1981). 

The factual basis may “be established by ‘strong evidence’ of guilt and does 

not require a finding of guilt beyond a reasonable doubt.” State v. Salinas, 

181 Ariz. 104, 106 (1994). Further, “Arizona courts have consistently held 
STATE v. ANDRADA-PASTRANO 

Decision of the Court 

3 

that it is sufficient that the court, not the defendant, satisfy itself of the 

factual basis for the plea.” State v. Herndon, 109 Ariz. 147, 148 (1973). 

¶5 The factual basis was sufficient to support the plea. Defense 

counsel provided the factual basis at the change-of-plea hearing. Counsel 

explained to the court that on the date of the incident, Petitioner appeared 

in a public office and presented to a public officer a document he knew 

contained false information. Petitioner personally told the court he agreed 

with everything his attorney said. A probation violation report further 

clarified that Petitioner knowingly provided a false address on the 

registration form when he renewed his sex offender registration. This 

evidence is sufficient to support a guilty plea to presentment of a false 

instrument for filing. See Arizona Revised Statutes (A.R.S.) section 39-161 

(West 2015).1 That Petitioner later told the court at the change of plea 

hearing that he was also “negligent” is of no matter. The factual basis 

established more than sufficient evidence of Petitioner’s guilt. 

¶6 As to his claim of ineffective assistance of counsel, Petitioner 

argues his trial attorney was ineffective because counsel first argued at a 

settlement conference that Petitioner was merely negligent, and therefore 

innocent, but then took the opposite position when he provided the factual 

basis for the plea and told the court Petitioner acted knowingly. The trial 

court did not err when it denied relief on this issue because counsel’s 

performance did not fall below an “objective standard of reasonableness.” 

Strickland v. Washington, 466 U.S. 668, 688 (1984). Counsel’s actions were 

well within the permissible bounds of advocacy. 

¶7 Regarding the court’s denial of Petitioner’s request for the 

appointment of an investigator, Petitioner argues on review that he needed 

an investigator to locate, interview and/or help subpoena several 

witnesses. However, Petitioner advised the trial court that he only needed 

an investigator to locate and subpoena his trial counsel from this case and 

the 1991 case. He told the court that was what his motion for an investigator 

“was all about.” We do not address this issue in the context of the 1991 case 

counsel because Petitioner presents no argument on review regarding his 

1991 counsel. For the reasons stated below, the trial court was also correct 

in its determination that counsel from the 1991 case was irrelevant to any 

issue in this case. Regarding the witnesses Petitioner identifies for the first 

time in his petition for review, a petition for review may not present issues 

not first presented to the trial court. See State v. Bortz, 169 Ariz. 575, 577 

 

1 We cite the current version of the applicable statutes unless revisions 

material to this decision have occurred since the date of the offense. 
STATE v. ANDRADA-PASTRANO 

Decision of the Court 

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(App. 1991); Ariz. R. Crim. P. 32.9.c.1.(ii). Therefore, we address this issue 

only in the context of trial counsel in the instant case. 

¶8 A trial court has authority to grant discovery requests in postconviction proceedings upon a showing of good cause. See Canion v. Cole, 

210 Ariz. 598, 600, ¶ 10 (2005). However, there are no provisions in Rule 32 

that provide for post-conviction discovery proceedings. Id. at 599-600, ¶¶ 

7-10. Petitioner failed to show there was good cause to appoint an 

investigator because there was no need to locate and/or subpoena his 

counsel. During a telephonic conference a month before the evidentiary 

hearing, counsel informed the court and parties he would appear at the 

evidentiary hearing voluntarily, and he ultimately did so. While Petitioner 

argues that an investigator’s interview of counsel would have revealed 

additional relevant information and would have helped prepare Petitioner 

for the hearing, Petitioner did not present this argument below. 

¶9 Finally, Petitioner argues that his trial counsel was ineffective 

when he failed to investigate the validity of his 1991 conviction. Petitioner 

contends that his 1991 conviction is invalid for various reasons. He argues 

that because his 1991 conviction was invalid, he was not required to register 

as a sex offender, and therefore he cannot be guilty of presentment of a false 

instrument for filing. He further argues he has a newly discovered police 

report related to the 1991 case. 

¶10 Petitioner's arguments amount to collateral attacks on his 

conviction in the 1991 case. His challenge of that conviction and claim of 

newly discovered evidence should have been made in a timely postconviction proceeding in that case, not this case. Unless and until Petitioner 

successfully overturns his conviction in the 1991 case, that conviction 

remains valid and there was no reason for counsel in this case to investigate 

the validity of that prior conviction. For these same reasons, we find the 

trial court did not err when it prevented Petitioner from examining his 

attorney about this issue at the evidentiary hearing. 

 
STATE v. ANDRADA-PASTRANO 

Decision of the Court 

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¶11 While the petition for review presents additional issues, 

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

filed below. Again, a petition for review may not present issues not first 

presented to the trial court. 

¶12 For the foregoing reasons, we grant review but deny relief.