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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BILL CLARK FLAKE, Petitioner.

No. 1 CA-CR 15-0634 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2008-030778-001

The Honorable Steven P. Lynch, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney's Office, Phoenix

By Susan L. Luder

Counsel for Respondent

Robert J. Campos & Associates, PLC, Phoenix

By Robert J. Campos

Counsel for Petitioner
STATE v. FLAKE

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in 

which Judge Patricia K. Norris and Chief Judge Michael J. Brown joined.

J O H N S E N, Judge:

¶1 Bill Clark Flake petitions for review of the partial denial of his

petition for post-conviction relief filed pursuant to Arizona Rule of 

Criminal Procedure 32. We have considered the petition for review and, 

for the reasons stated, grant review but deny relief.

¶2 A jury convicted Flake of five counts of sexual conduct with a 

minor and one count of sexual abuse. The superior court imposed 

consecutive prison terms totaling 55 years on three of the counts and placed 

Flake on lifetime probation on the other three counts. On appeal, this court

affirmed the convictions, the sentences and the imposition of probation. 

State v. Flake, 1 CA-CR 08-0859 (Ariz. App. Jun. 29, 2010) (mem. decision).

¶3 Flake filed a timely petition for post-conviction relief, raising

claims of ineffective assistance of counsel and seeking a new trial and

sentencing. The superior court granted an evidentiary hearing. Following

the hearing, the court ruled Flake had failed to prove he was prejudiced by

his counsel's alleged inadequate pretrial investigation and accordingly 

denied Johnson's request for a new trial. The court, however, also ruled 

Flake had established that his counsel had provided ineffective assistance 

by failing to obtain a risk assessment for mitigation purposes and that his 

counsel's deficient performance had prejudiced Flake at sentencing. Upon

re-sentencing, the superior court imposed consecutive mitigated prison 

terms totaling 45 years on three of the counts and again placed Flake on 

lifetime probation on the other three counts. This petition for review 

followed.

¶4 On review, Flake argues the superior court erred in not 

granting relief on his claims of ineffective assistance of counsel at trial. To 

obtain relief on a 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 prove prejudice, a 

defendant must establish "that there is a reasonable probability that, but for 
STATE v. FLAKE

Decision of the Court

3

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.

¶5 We review a ruling on a petition for post-conviction relief for 

abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006). When 

the superior court finds a claim to be colorable and conducts an evidentiary 

hearing, the defendant has the burden of proving all factual allegations by 

a preponderance of the evidence. Ariz. R. Crim. P. 32.8(c). After an 

evidentiary hearing, our review of the superior court's factual findings "is 

limited to a determination of whether those findings are clearly erroneous." 

State v. Sasak, 178 Ariz. 182, 186 (App. 1993). When "the trial court's ruling 

is based on substantial evidence, this court will affirm." Id.

¶6 The superior court judge who ruled on the petition for postconviction relief was the same judge who presided at Flake's trial. Having 

seen all the evidence and witnesses at trial, this judge was in the best 

position to determine whether there is a reasonable probability that, but for 

counsel's deficient performance, the outcome of the trial would have been 

different. See Strickland, 466 U.S. at 695 (in determining prejudice, court 

"must consider the totality of the evidence before the judge or jury"). Before 

ruling on Flake's petition for post-conviction relief, the judge read the 

original trial transcripts, reviewed the exhibits and heard Flake's trial 

counsel's explanation of how he approached Flake's trial. 

¶7 In his petition for post-conviction relief, Flake argued his 

counsel was ineffective by failing to interview the State's witnesses before 

trial about allegations that the victims had given inconsistent stories and 

had accused other family members of similar acts of molestation. He 

argued the trial outcome would have been different if his counsel had crossexamined the witnesses about those matters. In reviewing his claim, the

superior court concluded that "the prevailing trial preparation standard 

would mandate that pretrial witness interviews are completed by trial 

defense counsel." But the court found that, because Flake's counsel had 

"poked significant holes in witnesses' testimony" during the trial, the 

outcome would not have been different if counsel had done the 

investigation Flake argued should have performed.

¶8 Given all the evidence before the jury, including videotapes 

of Flake admitting he had sexual contact with the victims, the record 

supports the superior court's finding that Flake failed to demonstrate the 

requisite prejudice to entitle him to a new trial, i.e., a reasonable probability 

of a different outcome.
STATE v. FLAKE

Decision of the Court

4

¶9 Flake also argues in his petition for review that the superior

court erred in ordering resentencing instead of requiring the State to renew 

a pretrial plea offer. We do not address this claim because Flake did not 

raise this issue in his petition for post-conviction relief. Flake first raised 

his claim for reinstatement of the State's plea offer in a sentencing 

memorandum he filed three months after the superior court's ruling on the

petition for post-conviction relief. A petition for review of Rule 32 

proceedings may not present issues that were not timely raised in the 

petition for post-conviction relief. State v. Ramirez, 126 Ariz. 464, 468 (App. 

1980); see also Ariz. R. Crim. P. 32.9(c)(1)(ii) (requiring petition for review to 

contain "issues which were decided by the trial court and which the 

defendant wishes to present to the appellate court for review"); State v. 

Smith, 184 Ariz. 456, 459 (1996) (holding no review for fundamental error in 

a post-conviction relief proceeding).

¶10 Accordingly, although we grant review we deny relief.