State v. Gamez

BROWN, Judge

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Petition for Review from the Superior Court in Maricopa County
No. CR2008-152304-001
The Honorable Emmet J. Ronan, Judge

COUNSEL Maricopa County Attorney's Office, Phoenix
By E. Catherine Leisch
Counsel for Respondent

Frank Lerma Gamez, Florence
Petitioner

Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined. BROWN, Judge: ¶1 Petitioner Frank Lerma Gamez petitions this court for review from the dismissal of his petition for post-conviction relief. We have considered the petition for review and, for the reasons stated, grant review and deny relief. ¶2 A jury convicted Gamez of aggravated assault, resisting arrest, unlawful imprisonment, and two counts of sexual conduct with a minor, both of which were dangerous crimes against children. The trial court sentenced Gamez to a combined term of thirty-two years' imprisonment and this court affirmed his convictions and sentences on direct appeal. State v. Gamez, 227 Ariz. 445, 258 P.3d 263 (App. 2011). Gamez 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 Gamez now seeks review. We have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c). ¶3 Gamez argues that (1) the evidence was insufficient to convict him of sexual conduct with a minor as a dangerous crime against children; (2) the trial court erred when it refused to give Gamez's proffered instructions regarding sexual conduct with a minor as a dangerous crime against children; and (3) the instructions the court did give regarding this offense were otherwise inadequate. Gamez further argues the trial court erred when it gave an incorrect response to a question from the jury and when it refused to allow Gamez to claim, as an affirmative defense, that he did not know the victim's age. Finally, Gamez argues his trial counsel was ineffective. ¶4 Any claim a defendant raised or could have raised on direct appeal is precluded. Ariz. R. Crim. P. 32.2(a). With the exception of the claim of ineffective assistance of counsel, Gamez could have raised all of these claims on direct appeal, and none of the exceptions under Rule 32.2(b) apply. Gamez, 227 Ariz. at 449, ¶ 24, 258 P.3d at 267. ¶5 Regarding the claim of ineffective assistance of counsel, Gamez does not identify what his trial counsel did or failed to do and does not argue how any action or inaction of counsel fell below objectively reasonable standards or otherwise prejudiced Gamez. Therefore, Gamez has failed to present a colorable claim of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984). ¶6 Based on the foregoing, we grant review and deny relief.