NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS 

DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

MAX RAMIRO GARCIA, Petitioner.

No. 1 CA-CR 13-0083 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2009-145409-001

The Honorable Pamela H. Svoboda, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Susan L. Luder

Counsel for Respondent

Max Ramiro Garcia, Douglas

Petitioner Pro Se

MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which 

Presiding Judge Michael J. Brown and Judge Randall M. Howe joined.
STATE v. GARCIA

Decision of the Court

2

K E S S L E R, Judge:

¶1 Petitioner Max Ramiro Garcia petitions this Court to review 

the dismissal of his petition for post-conviction relief. The Court has 

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

review and denies relief.

¶2 A jury convicted Garcia of one count of negligent homicide

(“Count 1”), one count of endangerment (“Count 2”), and one count of 

leaving the scene of a fatal injury accident (“Count 3”). The jury found 

Count 1 and 2 were dangerous offenses. As to Count 3, the jury also

found the State failed to prove Garcia caused the accident. The trial court 

sentenced Garcia to an aggregate term of nine and one-half years’

imprisonment and this Court affirmed his convictions and sentences on 

direct appeal. State v. Garcia, 1 CA-CR 10-0554, 2011 WL 4575020 (Ariz. 

App. Oct. 4, 2011). Garcia then filed a pro se petition for post-conviction 

relief after his counsel found no colorable claims for relief. The trial court 

summarily dismissed the petition and Garcia now seeks review. We have 

jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c). 

¶3 We review the trial court’s decision on whether a defendant 

has presented a colorable claim for post-conviction relief on an abuse of 

discretion standard. State v. Krum, 183 Ariz. 288, 293, 903 P.2d 596, 601 

(1995). We may affirm the decision of a trial court on any basis supported 

by the record. State v. Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 809 

(1987).

¶4 It is the appellant’s duty to provide evidence in support of 

any legal arguments made. Ariz. R. Crim. P. 31.13(c)(1)(vi), 32.5. Further, 

a petition for review may not merely incorporate by reference any issue or 

argument, but rather must set forth specific claims, present sufficient 

argument supported by legal authority, and include citation to the record. 

See State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991); Ariz. R. 

Crim. P. 32.5, 32.9(c). A petitioner must “strictly comply” with Rule 32 to 

be entitled to relief. Canion v. Cole, 210 Ariz. 598, 600, ¶ 11, 115 P.3d 1261, 

1263 (2005). Therefore, we will not consider Garcia’s arguments to the 

extent he attempted to incorporate by reference any portion of the record 

into his petition for review. We address only those issues for which he

sets forth specific claims supported by sufficient argument and citation to 

both legal authority and the record.

¶5 Garcia argues his trial and appellate counsel were 

ineffective. To state a colorable claim of ineffective assistance of counsel, a 
STATE v. GARCIA

Decision of the Court

3

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 that there is a “reasonable probability 

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

would have been different.” Id. at 694. 

I. Ineffective Trial Counsel

¶6 Garcia argues his trial counsel was ineffective when he failed 

to assert Garcia’s right to a preliminary hearing pursuant to Arizona Rule 

of Criminal Procedure 5.1(a) and when he failed to take steps to have

Garcia present evidence at a preliminary hearing or to the grand jury. 

¶7 We deny relief on this issue. First, Garcia had no right to a 

preliminary hearing pursuant to Rule 5.1(a) because the State ultimately 

charged Garcia through an indictment, not a complaint. See Ariz. R. Crim. 

P. 5.1(a), 5.3(a). Second, Garcia does not allege he ever asked his counsel 

to seek the opportunity to have Garcia appear before the grand jury, 

although he had the right to seek such an opportunity pursuant to Rule 

12.6. Even if counsel should have asked to have Garcia appear before the 

grand jury, Garcia does not show that any testimony he would have given 

would have led to the grand jury refusing to indict him. 

¶8 Garcia argues that the Court should grant relief because he 

was unable to submit a photograph into evidence, prevented from 

testifying on his own behalf, and not allowed other witnesses to testify on 

his behalf. However, the trial court found Garcia’s testimony and the 

other witnesses’ testimony to be inadmissible. Additionally, the 

photograph would only be a valid claim for post-conviction relief under 

Rule 32.1 if it was newly discovered material evidence discovered after 

trial. Ariz. R. Crim. P. 32.1(e). Garcia does not describe this evidence, but 

since it is from the date of the arrest, we conclude it was not discovered 

after trial and his argument is therefore precluded. 

¶9 Garcia next argues his trial counsel was ineffective when he 

advised Garcia not to testify at trial. A defendant must prove by a 

preponderance of the evidence that “(1) counsel lacked minimal 

competence as determined by prevailing professional norms, and (2) 

counsel’s deficient performance prejudiced the defense.” State v. Henry, 

176 Ariz. 569, 585, 863 P.2d 861, 877 (1993). Garcia does not provide 

reasons or evidence of how this behavior fell below the objectively 

reasonable standard and does not argue that any action or inaction of 
STATE v. GARCIA

Decision of the Court

4

counsel prevented him from testifying. A reviewing court should give 

deference to tactical decisions made by counsel and should refrain from 

evaluating counsel’s performance in hindsight. State v. Nash, 143 Ariz. 

392, 398, 694 P.2d 222, 228 (1985) (quoting Strickland, 466 U.S. at 689). For 

these reasons, Garcia failed to state a colorable claim for relief.

II. Ineffective Appellate Counsel

¶10 Garcia argues his appellate counsel was ineffective when she 

failed to present an issue regarding jury selection pursuant to Batson v. 

Kentucky, 476 U.S. 79 (1986). However, Garcia does not provide legal 

arguments or factual evidence in support of this assertion.

¶11 Garcia also argues appellate counsel was ineffective when 

she failed to present an issue regarding the jury’s determination that

Count 1 and 2 were dangerous. Garcia argues the offenses could not be 

dangerous because the jury did not find he acted intentionally. 

¶12 A dangerous offense is defined as any offense involving a 

deadly weapon or dangerous instrument, or “the intentional or knowing

infliction of serious physical injury on another person.” Ariz. Rev. Stat.

(“A.R.S.”) § 13-105(13) (Supp. 2013) (emphasis added).

1 A dangerous 

instrument can be anything that is used to cause death or serious physical 

injury. A.R.S. § 13-105(12) (Supp. 2013). When use of a car is not an 

element of the underlying offense, a car may be considered a dangerous 

instrument. State v. Orduno, 159 Ariz. 564, 566, 769 P.2d 1010, 1012 (1989); 

State v. Howard, 163 Ariz. 47, 50, 785 P.2d 1235, 1238 (App. 1989). 

Therefore, the jury could find that the offenses were dangerous even 

though they found Garcia did not act intentionally. 

¶13 Finally, Garcia argues his appellate counsel should have 

presented an issue regarding the trial court’s failure to define

“intentional” for the jury. None of the offenses Garcia was convicted of 

required he act intentionally. See A.R.S. §§ 13-1102(A) (2010) (Count 1, 

negligent homicide), 13-1201 (2010) (Count 2, endangerment), 28-661(B)

(Supp. 2013) (Count 3, leaving the scene of a fatal accident), 13-105(13) 

(defining “dangerous offense”), 13-704(A) (Supp. 2013) (listing sentences 

for dangerous offenders). Within this final argument, Garcia argues the 

verdicts are inconsistent since the jury found on Count 3 that he did not 

 

1 We cite the current version of the applicable statute when no revisions 

material to this decision have since occurred.
STATE v. GARCIA

Decision of the Court

5

cause the accident. However, “there is no requirement that a jury’s 

verdicts on different counts be consistent.” State v. Barr, 183 Ariz. 434, 439, 

904 P.2d 1258, 1263 (App. 1995). Therefore, we deny relief on this issue.

CONCLUSION

¶14 For the foregoing reasons, we grant review and deny relief.