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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ALEX OSUNA, Petitioner.

Nos. 1 CA-CR 13-0340 PRPC

FILED 12-15-2015

Appeal from the Superior Court in Yuma County

No. S1400CR200901226

The Honorable Lisa W. Bleich, Judge Pro Tempore

REVIEW GRANTED; 

RELIEF GRANTED IN PART AND DENIED IN PART

COUNSEL

Yuma County Attorney’s Office, Yuma

By Charles V. S. Platt

Counsel for Respondent

Sharmila Roy, Laveen

Counsel for Petitioner
STATE v. OSUNA

Decision of the Court

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MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in 

which Judge Jon W. Thompson and Judge Lawrence F. Winthrop joined. 

H O W E, Judge:

¶1 Petitioner Alex Osuna petitions this court for review from the 

summary dismissal of two petitions for post-conviction relief he filed in two 

separate matters, which we have consolidated for review. We have 

considered the petitions and for the following reasons grant review and

grant relief in part and deny relief in part. 

¶2 In the first case (“the assault case”), a jury convicted Osuna of 

aggravated assault, and the trial court sentenced him to the minimum term 

of five years’ imprisonment. We affirmed his conviction and sentence on 

direct appeal. In the second case (“the robbery case”), Osuna pled guilty to 

attempted armed robbery, and the trial court sentenced him to a mitigated, 

consecutive term of five years’ imprisonment as stipulated in the plea 

agreement. Osuna filed petitions for post-conviction relief in both cases and 

raised claims of ineffective assistance of counsel. The trial court found 

Osuna failed to present colorable claims for relief and summarily dismissed 

each petition.1 Osuna now seeks review. We have jurisdiction pursuant to 

Arizona Rule of Criminal Procedure 32.9(c) and A.R.S. § 13–4239(C). 

 

1 The State argues that Osuna failed to preserve some of these issues 

for post-conviction consideration because he could have raised them while 

his cases were still pending. The State further contends that Osuna’s failure 

to file replies to the State’s responses to the petitions for post-conviction 

relief and petitions for review renders the State’s responses dispositive on 

all the issues presented. But no provision of Arizona law requires that a 

defendant raise claims of ineffective assistance of counsel while the matter 

is pending in the superior court to preserve those claims for future postconviction relief proceedings or that a defendant file a reply to a response.
STATE v. OSUNA

Decision of the Court

3

1. The Assault Case

¶3 In the assault case, Osuna argues that his trial counsel was 

ineffective in failing to inform him of the deadline to accept the State’s plea 

offer and in failing to call two witnesses to testify at trial. “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, 750 P.2d 14, 16 (1988); State v. Adamson, 136 Ariz. 250, 265, 

665 P.2d 972, 987 (1983). To state a colorable claim of ineffective assistance 

of counsel, a defendant must show that counsel’s performance fell below 

objectively reasonable standards and that the deficient performance 

prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). 

To show prejudice, a defendant must show a “reasonable probability that 

but for counsel’s unprofessional errors, the result of the proceeding would 

have been different.” Id. at 694. “A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Id. “Reasonable 

probability is defined as less than more likely than not, but more than a 

mere possibility.” State v. Vickers, 180 Ariz. 521, 527, 885 P.2d 1086, 1092 

(1994) (internal quotation marks and citation omitted). If a defendant fails 

to make a sufficient showing on either prong of the Strickland test, the trial 

court need not determine whether the defendant satisfied the other prong. 

State v. Salazar, 146 Ariz. 540, 541, 707 P.2d 944, 945 (1985). The petitioner

has the burden to show ineffective assistance of counsel, and “the showing 

must be that of a provable reality, not mere speculation.” State v. Rosario, 

195 Ariz. 264, 268 ¶ 23, 987 P.2d 226, 230 (App. 1999).

1a. The Deadline to Accept the Plea Offer

¶4 In October 2009, the State offered to let Osuna plead guilty to 

attempted aggravated assault as a non-dangerous, non-repetitive offense. 

The State made no offer regarding sentencing, which meant that the trial 

court could sentence Osuna to a sentence that ranged from the minimum of 

0.75 years to the maximum of two years’ imprisonment should Osuna 

accept the plea. Probation was also available. At that time, the State 

provided no deadline to accept the plea. In February 2010, however, the 

State informed Osuna’s counsel that the offer would expire if Osuna did not 

accept before March 5, 2010. Osuna concedes that he knew about the plea 

offer, but argues that he did not learn of the deadline until he attempted to 

accept the offer and his attorney told him that it had expired. Osuna argues 

that his counsel was ineffective in failing to inform him of the deadline to 

accept the plea. 
STATE v. OSUNA

Decision of the Court

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¶5 The rejection or lapse of a plea offer due to counsel’s deficient 

performance is a cognizable claim of ineffective assistance of counsel. 

Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399, 1409 (2012). “To show 

prejudice from ineffective assistance of counsel where a plea offer has 

lapsed or been rejected because of counsel’s deficient performance, 

defendants must demonstrate a reasonable probability they would have 

accepted the earlier plea offer had they been afforded effective assistance of 

counsel.” Id. Defendants must also demonstrate a reasonable probability 

that “the plea would have been entered without the prosecution canceling 

it or the trial court refusing to accept it, if they had the authority to exercise 

that discretion under state law.” Id. To establish prejudice in this instance, 

defendants must “show a reasonable probability that the end result of the 

criminal process would have been more favorable by reason of a plea to a 

lesser charge or a sentence of less prison time.” Id.

¶6 A colorable claim in a petition for post-conviction relief is one 

that, if the allegations are true, might have changed the outcome. State v. 

Runningeagle, 176 Ariz. 59, 63, 859 P.2d 169, 173 (1993). If a petition for postconviction relief presents a colorable claim of ineffective assistance of 

counsel, the petitioner is entitled to an evidentiary hearing. D’Ambrosio, 156 

Ariz. at 74, 750 P.2d at 17. Osuna presented a colorable claim that counsel 

was ineffective in failing to inform him of the deadline to accept the plea. 

Nothing in the record establishes that counsel informed Osuna of the 

deadline or that Osuna otherwise knew of it. Further, the State’s 

representations regarding the record to prove the contrary offer only 

speculation. While the State complains that Osuna asks only for

reinstatement of the plea and/or a new trial, both are appropriate remedies 

when counsel’s deficiency caused the rejection or lapse of a plea offer. State 

v. Donald, 198 Ariz. 406, 418 ¶ 45, 10 P.3d 1193, 1205 (App. 2000). We express 

no opinion, however, on whether Osuna is ultimately entitled to either or 

any other form of relief. We find only that he presented a colorable claim

and therefore grant relief on this issue.

1b. The Trial Witnesses

¶7 Osuna further argues that counsel was ineffective in failing to 

call witnesses “P” and “M” to testify at trial. P provided an affidavit in 

which he stated he was in the vehicle with Osuna at the time of the incident

and that Osuna was neither the person who argued with the victim nor the 

person who threw the object that struck the victim. P further stated that he 

provided this information to Osuna’s counsel and informed counsel he was 

willing to testify at trial. M provided an affidavit in which he stated he was 

also in the vehicle with Osuna at the time of the incident and that Osuna 
STATE v. OSUNA

Decision of the Court

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was not the person who threw the object that struck the victim. M further 

stated that he was present when police arrived at Osuna’s mother’s 

residence in search of Osuna. M stated that contrary to police allegations, 

Osuna was neither at the residence nor was he the person in the residence

who fled from police. Finally, M stated that he provided this information to 

Osuna’s counsel and informed counsel he was willing to testify at trial. 

¶8 Osuna presented a colorable claim that defense counsel was 

ineffective in failing to call P and/or M to testify at trial, but only in the 

context of whether Osuna was the person who threw the object that struck 

the victim. Both individuals stated in affidavits that Osuna was not the 

person who threw the object, that they provided this information to 

Osuna’s counsel, and that they were willing to testify. This was exculpatory 

information that could have resulted in an acquittal had the jury chosen to 

believe P and/or M’s testimony. Again, we express no opinion on whether 

Osuna is ultimately entitled to relief and find only that he presented a 

colorable claim.

¶9 While the State argues that Osuna’s counsel made a “tactical” 

decision not to call M at trial, the State failed to ensure the transcripts it

relies upon were made part of the record on review in either case before us.

If we assume the State’s quoted portions of the transcripts are correct, 

however, the discussion between Osuna’s counsel and the trial court 

regarding M serve only to further demonstrate that Osuna presented a 

colorable claim. Osuna complained during trial that his counsel would not 

call M as well as other witnesses to testify. Counsel explained that he made 

a tactical decision not to call those witnesses, including M. When he 

explained his tactical decision regarding M, however, counsel stated that 

“up until maybe a day or so before trial started, [he] had no idea [M] would 

be relevant to this case[]” and claimed that no one informed him that M had 

any relevant information. Counsel also stated that once he learned M might 

have relevant information, it was too late to contact M and too late to

disclose M to the State. Counsel further claimed that Osuna and his family 

informed counsel that M would not be available for trial.2 When the court 

asked Osuna to respond to counsel’s representations, Osuna stated they

were “false.” This further supports the determination that Osuna presented 

a colorable claim for relief.

 

2 Defense counsel never mentioned P by name, and nothing in the 

State’s representations of the record exists to establish that any witness 

counsel referred to was P.
STATE v. OSUNA

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¶10 We deny relief, however, on the claim that counsel was 

ineffective in failing to call M to testify on the specific subject of whether 

Osuna was in the residence when police arrived and/or whether he was 

the person who successfully fled. On direct appeal, we found no error when 

the trial court held that M’s testimony on this subject would have been 

cumulative. Because the testimony would have been cumulative, Osuna 

has failed to present a colorable claim that he suffered any prejudice. 

2. The Robbery Case

¶11 In the robbery case, the State made an offer in which Osuna 

would plead guilty to attempted armed robbery with no agreements with 

regards to sentencing. This exposed Osuna to a sentence that ranged from 

the minimum of 2.5 years to the maximum of seven years’ imprisonment 

with no agreement on whether the sentence would run concurrent with or 

consecutive to the sentence in the assault case. Probation remained 

available. The State provided no deadline to accept the offer at that time. 

The State later informed Osuna’s counsel that the offer would expire if 

Osuna did not accept it before a specific date. Osuna claims his counsel 

never informed him of the first offer let alone the deadline to accept it. The 

State later made a second offer in which Osuna would plead guilty to 

attempted armed robbery and receive a stipulated sentence of five years’ 

imprisonment, to be served consecutively to his sentence in the assault case. 

Osuna ultimately accepted the second offer. When the trial court imposed 

sentence, the court ordered the sentence to run consecutively to the 

sentence in the assault case. 

¶12 Osuna argues that his trial counsel in the robbery case was 

ineffective in failing to inform him of the first plea offer and that counsel’s

ineffectiveness forced him to accept a “worse” offer. We deny relief. Osuna 

has failed to show a reasonable probability that the end result of the robbery 

case would have been more favorable if he knew of and accepted the first 

plea offer. See Frye, ___ U.S. at ___, 132 S. Ct. at 1409 (to prove prejudice 

when counsel’s deficient performance results in the lapse of a plea, a 

defendant must show “a reasonable probability” that the defendant would 

have pled to a lesser charge or received a sentence of less prison time). The 

first plea offer exposed Osuna to up to seven years’ imprisonment, which 

the court could have made consecutive to the sentence in the assault case. 

The offer he ultimately accepted limited his exposure to a five-year 

sentence. That the trial court would have imposed a sentence of less than 

five years and/or ordered Osuna to serve the sentence concurrently with 

the sentence in the assault case if Osuna had accepted the first offer is 

speculation, not “a reasonable probability.” “Mere speculation” is not 
STATE v. OSUNA

Decision of the Court

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sufficient to prove ineffective assistance of counsel. Rosario, 195 Ariz. at 268 

¶ 23, 987 P. 2d at 230.

3. Conclusion

¶13 For the foregoing reasons, Osuna presented colorable claims 

that his trial counsel was ineffective in failing to inform him of the deadline 

to accept the plea offer in the assault case and in failing to call P or M to 

testify about whether Osuna was the person who threw the object at the 

victim in the assault case. We grant review and relief on those claims and 

remand for proceedings consistent with this decision. We grant review, but 

deny relief on all of the remaining claims.