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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Respondent
,

v.

JOSUE ESTRADA CALVILLO
, Petitioner

.
No. 1 CA

- CR 19

- 0239 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR 2013

- 003405

- 001 The Honorable William R

. Wingard
, Judge Pro T empore
REVIEW GRANTED; RELIEF DENIED

COUNSEL
Maricopa County Attorney’ s Office , Phoenix By Robert E

. Prather Counsel for Respondent

Josue Estrada Calvillo
, Florence Petitioner FILED 9-1-2020STATE v. CALVILLO Decision of the Court

2 MEMORANDUM DECISION

Presiding Judge David D. Weinzweig delivered the decision of the Court, in which Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.

W E I N Z W E I G , Judge:

¶1 Josue Estrada Calvillo petitions this Court to review the dismissal of his petition for p ost

- conviction relief (“PCR”). We have considered the petition for review and, for the reasons stated, grant review and deny relief.

¶2 Petitioner pled guilty to one coun t of sexual conduct with a minor, a class 2 felony
, and two counts of attempted child molestation , class 3 felonies

. See A.R.S. §§ 13

- 1405
, - 1410. T he superior court imposed a twenty

- year sentence for the sexual conduct charge pl us concurrent lifetime probation terms for the attempted molestation charges , to run consecutively to the prison term

. By entering a guilty plea, Petitioner waived all non

-

jurisdictional defenses, errors and defects before the plea. State v. Flores , 218 Ariz. 407, 409

- 10, ¶ 6 (App. 2008).

¶3 Petitioner timely requested post

- conviction relief and t he superior court appointed defense counsel to represent him. PCR counsel found no colorable issues to raise after reviewing the record and considering Petitioner’s input

. Petitioner then moved for post

- conviction relief pro s e in the superior court
, challenging only his conviction for sexual conduct with a minor. He argue d that insufficient evidence supported his conviction because the State suppressed exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83 (1963) , pointing to a n un disclose d (1) medical report finding “no signs of genital injury or trauma” to the victim and (2) transcript of a call between Petitioner’s wife and a family member

. Petitioner did not otherwise challenge the factual basis supporting his conviction for sexual conduct with a minor. See State v. Ovante , 231 Ariz. 180, 184, ¶ 12 (2013) (“Before accepting a plea, a court must establish a factual basis for each element of the crime.”); Ariz. R. Crim. P. 17.3(b). He also claim ed ineffective assistance of counsel for failure to investigate this previously undisclosed evidence

. The superior court summarily dismissed his petition.STATE v. CALVILLO Decision of the Court

3 ¶4 S ummary dismiss al is appropriate unless the petitioner states a colorable claim
, State v. Kolmann , 239 Ariz. 157, 160, ¶ 8 ( 2016), meaning th e claim
, if true, “ might have changed the outcome,” State v. Running eagle
, 176 Ariz. 59, 63 (1993)

. W e review the superior court’s denial of relief for

a n abuse of discretion

. State v. Amaral , 239 Ariz. 217, 219, ¶ 9 (2016) . We find no abuse here

. Brady Claim

¶5 The State violates “a defendant’s right to due process [under Brady ] if it withholds evidence that is fa vorable to the defense and material to the defendant’s guilt.” See Smith v. Cain , 565 U.S. 73, 75 (2012); State v. Benson , 232 Ariz. 452, 460, ¶ 24 (2013) (same). Evidence is “material” if “there is a reasonable probability that, had the evidence been di sclosed, the result of the proceeding would have been different.” Smith , 565 U.S. at 75 (quoting Cone v. Bell , 556 U.S. 449, 470 (2009)).

¶6 Petitioner fails to present a colorable Brady claim for two reasons. First, pleading defendants waive all non

- jurisdictional defects antedat ing the plea, Flores , 218 Ariz. at 409

- 10, ¶ 6
, including any pretrial Brady violations, State v. Reed , 121 Ariz. 547, 548 (App. 1979).

¶7 Second
, the undisclosed documents were neither exculpat ory nor material. Because Petitioner’s conviction for sexual conduct with a minor arose from masturbatory contact (“rubbing”) , not penetration, the lack of physical trauma to the victim ’s genitals does not negate his guilt. And the call transcript only reflects that Petitioner d enied the crime to his wif e , which does not establish Petitioner’s innocence or disprove any element of sexual conduct with a minor

. See A.R.S. § 13

- 1405(A). As such, Petitioner has not shown a reasonable probabi lity that disclosure of the medical report or transcript would have led him to reject a plea offer and proceed to trial. See Benson , 232 Ariz. at 460, ¶ 24

.

Ineffective Assistance of Counsel

¶8 Petitioner likewise fails to present a colorable claim for ineffective assistance of counsel. A petitioner “ may obtain post

- conviction relief on the basis that counsel’s ineffective assistance led [him ] to make an uninformed decision to accept or reject a plea bargain.” State v. Banda , 232 Ariz. 582, 585, ¶ 12 (App. 2013). To state a colorable claim, the petitioner “must show both that counsel’s performance fell below objectively reasonable standards and that this deficiency prejudiced [him] .” State v. Bennett , 213 Ariz. 562, 567, ¶ 21 (2006).STATE v. CALVILLO Decision of the Court

4 ¶9 Petitioner cannot show that counsel’s performance was deficient during plea negotiations, Runningeagle , 176 Ariz. at 63 , meaning that counsel “ either (1) gave erroneous advice or (2) failed to give information necessary to allow the petitioner to make an informed decision whether to accept the plea.” State v. Donald , 198 Ariz. 406, 413, ¶ 16 (App. 2000)

. P etitioner suggest s his counsel was deficient because he never discovered the medical report or call transcript. Aside from our determination that this evidence was neither exculpatory nor material, defense c ounsel can not reasonably be expected to explore possible defenses based on an investigation of undisclosed evidence

. See Kolmann , 239 Ariz.

a t 160 , ¶ 9 ( W e ask whether counsel’s assistance was “ reasonable under prevailing professional norms, ‘considering all the circumstances.’”) (quoting Hinton v. Alabama
, 571 U.S. 263, 273 (2014) ). Petitioner therefore
cannot show prejudice either

. See State v. Bowers , 192 Ariz. 419, 424, ¶ 19 (App. 1998) ( T he prejudice requirement “ is satisfied when a petitioner demonstrates a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to tria l.”) (internal quotation marks omitted) (quoting Hill v. Lockhart , 474 U.S. 52, 59 (1985) ).

¶10 Nor did Petitioner “specify the acts or omissions of counsel that allegedly constitute ineffective assistance [ of counsel ]

. ” State v. Santanna , 153 Ariz. 147, 149 (1987) ; Donald , 198 Ariz. at 413 , ¶ 17 ( T o establish a colorable claim, petitioner must “present more than a conclusory assertion ” and “should support [his] allegations by sworn statements or provide a satisfactory explanation of their absence.”). Petitioner only
asserts that counsel conducted “no investigation” and failed to “challenge any part of the [S]tate’s case on material [or] constitutional grounds

. ” Cf. State v. Pandeli
, 242 Ariz. 175, 180

- 83, ¶¶ 2, 9, 22 (2017) (PCR co unsel asserted fifteen specific IAC claims, including failure to cross

- examine the State’s key witness and failure to present petitioner’s brain imaging scans

. )

. Petitioner’s inability to articulate his claim or specify why counsel’s efforts

were deficien t is fatal

. See State v. Leyva , 241 Ariz. 521, 526, ¶ 13 (App. 2017) (“[A] challenge to plea proceedings is subject to summary dismissal when based on ‘conclusory allegations unsupported by specifics ’ or on ‘contentions that i n the face of the record are wholly incredible.’” ) (quoting Blacklege v. Allison
, 431 U.S. 63, 74 (1977) ).

¶11 Lastly, Petitioner does not allege he was induced to plead guilty by promises or threats, and this court has rejected his “coercion” theory

. Leyva , 241 Ariz. at 526, ¶ ¶ 14, 16 ( A defendant “ will feel ‘ coerced ’ in the lay sense of the word by an attorney’s recommendation to plead guilty, but defense counsel’s . . . honest but negative assessment ofSTATE v. CALVILLO Decision of the Court

5 [petitioner’s] chances at trial does not constitute improper behavior or coercion that would suffice to invalidate a plea.”) (alteration in original) (internal quotation marks omitted) (quoting United States v. Juncal , 245 F.3d 166, 172

- 74 (2d Cir. 2001)).

¶12 We therefore grant review but deny relief.