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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CLAY PHILLIP FACCIO, Petitioner. 

No. 1 CA-CR 16-0539 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2012-148338-002 

The Honorable Michael W. Kemp, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Adena J. Astrowsky

Counsel for Respondent 

Clay Phillip Faccio, Eloy

Petitioner

FILED 8-24-2017
STATE v. FACCIO

Decision of the Court

2 

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which 

Presiding Judge Kent E. Cattani, and Judge Jon W. Thompson joined.

M c M U R D I E, Judge:

¶1 Clay Phillip Faccio petitions this court for review from the 

dismissal of his petition for post-conviction relief (“PCR”). We have 

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

but deny relief. 

¶2 Having failed to appear for trial, Faccio was tried in absentia

and convicted by a jury of possession of narcotic drugs for sale, possession 

or use of dangerous drugs, and possession of drug paraphernalia. After 

admitting to two prior felony convictions, he was sentenced to 20 years in 

prison on the possession of narcotic drugs for sale charge and concurrent 

prison terms on the other two counts. His convictions were affirmed on 

appeal in State v. Faccio, 1 CA-CR 13-0849, 2014 WL 7446733 (Ariz. App. 

Dec. 30, 2014) (mem. decision). 

¶3 Faccio brought a timely pro se petition for post-conviction 

relief alleging ineffective assistance of counsel (“IAC”). The superior court 

summarily dismissed his petition. We review for abuse of discretion. State 

v. D’Ambrosio, 156 Ariz. 71, 73 (1988).

¶4 In his petition for review, Faccio alleges that his trial counsel 

gave him erroneous advice as to his case, which resulted in him rejecting 

the plea offer of 9.25 years in prison and choosing to proceed to trial. He 

claims that but for the promise of a successful result at trial, he would have 

chosen to accept the plea, and requests reinstatement of the plea. Faccio also 

raises additional issues and allegations relating to his PCR counsel, and 

expands his IAC claim against trial counsel to include allegations related to 

trial performance. We decline to consider matters and evidence not 

appropriately presented below. Issues not presented to the superior court 

may not be presented in the petition for review. Ariz. R. Crim. P. 32.9(c)(1); 

State v. Wagstaff, 161 Ariz. 66, 71 (App. 1988), approved as modified, 164 Ariz. 

485 (1990); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980). 

¶5 Attached to his PCR is a detailed affidavit claiming he 

proceeded to trial based on his attorney’s “promise that there was 
STATE v. FACCIO

Decision of the Court

3 

insufficient evidence of reasonable doubt . . .” and there was “no point in 

considering any offers because I would go home.” Faccio also details 

specific alleged representations made by counsel, inducing him to proceed 

to trial, citing arguments made by his counsel at trial as support for his 

allegations. Faccio contends he is entitled to an evidentiary hearing based 

upon his allegations alone. The court views allegations in a petition in light 

of the entire record to determine if a claim is colorable. State v. Lemieux, 137 

Ariz. 143, 146 (App. 1983). In view of the entire record, Faccio does not have 

a colorable claim of ineffective assistance of counsel and the superior court 

did not abuse its discretion. 

¶6 The record shows that the State made at least three different 

plea offers and Faccio rejected every offer. Faccio received two different 

Donald advisements or warnings. During the settlement conference, his 

only question regarding the proceedings was related to hiring private 

counsel, not about the offer or proceeding to trial. 

¶7 At the settlement conference, at the behest of his counsel, the 

prosecutor went into a detailed discussion of the facts of the case, including 

the existence and possible testimony of a drug informant; a recording of the 

drug transaction with the informant; Faccio’s recorded confession; the 

intended testimony of Faccio’s co-defendant; his criminal history; and that 

Faccio was listed as a repeat offender. Faccio was again advised of the facts 

and possible disposition of his case during a Donald advisement.

¶8 The record also reflects that his attorney engaged in

negotiations and filed one or more deviation requests. He was tendered a 

final reduced offer of 9.25 years, which Faccio clearly rejected on the record

after being advised of the consequences by the court. The record directly 

contradicts the claim that his attorney advised him to reject a plea and 

promised him he would be acquitted because the State had insufficient 

evidence. 

¶9 To show ineffective assistance of counsel, Faccio must show 

both deficient performance by counsel and prejudice. Strickland v. 

Washington, 466 U.S. 668, 687 (1984). The court is not bound by the selfserving assertions of a defendant, especially when contradicted by the 

record. See, e.g., State v. Goswick, 142 Ariz. 582, 585 (1984) (in the context of 

an IAC claim, finding no sufficient factual basis to support an allegation 

based on a self-serving affidavit of the defendant); see also Toro v. Fairman, 

940 F.2d 1065, 1068 (7th Cir. 1991) (defendant’s self-serving memorandum 

regarding plea not sufficient alone to show prejudice). 
STATE v. FACCIO

Decision of the Court

4 

¶10 Faccio does not cite to any evidence in the record supporting 

his claim that his attorney was urging him to trial or that he wanted the 

plea, as he asserts in his PCR reply. His counsel attempted to obtain a better 

result through negotiation. The choice to proceed to trial was made by 

Faccio, and Faccio alone. 

¶11 Finding no abuse of discretion, we grant review but deny 

relief.