ESPINOSA, Judge
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Pima County
No. CR20121308001
The Honorable Javier Chon-Lopez, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Law Offices of Erin E. Duffy P.L.L.C., Tucson
By Erin E. Duffy
Counsel for Petitioner
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Chief Judge Vásquez and Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Petitioner Michael Aguilar seeks review of the trial court's order denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007). Aguilar has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Aguilar was convicted of two counts of attempted armed robbery. The trial court sentenced him to concurrent prison terms of 11.25 years. This court affirmed his convictions and sentences on appeal. State v. Aguilar, No. 2 CA-CR 2014-0067 (Ariz. App. Dec. 24, 2014) (mem. decision).
¶3 Aguilar sought post-conviction relief, contending in his petition that he had received ineffective assistance of counsel. He argued that counsel should have used evidence from his cell phone of contact with one of the victims to impeach the victim's testimony that he did not know Aguilar and that counsel should not have told the court Aguilar was "very unpredictable" in response to the court's question about a plea offer. The trial court ordered an evidentiary hearing on the issue of the cell phone evidence, after which it denied relief.
Aguilar also claimed trial counsel should have objected to the admission of a 9-1-1 recording and appellate counsel was ineffective for failing "to raise the issue of prosecutorial misconduct." He does not, however, argue the trial court erred in dismissing these claims, and we therefore do not address them. See Ariz. R. Crim. P. 32.9(c)(4)(D); State v. Rodriguez, 227 Ariz. 58, n.4 (App. 2010) (declining to address argument not raised in petition for review).
¶4 Our review of the trial court's factual findings "is limited to a determination of whether those findings are clearly erroneous"; we "view the facts in the light most favorable to sustaining the lower court's ruling, and we must resolve all reasonable inferences against the defendant." 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. And, "[e]vidence is not insubstantial merely because testimony is conflicting or reasonable persons may draw different conclusions from the evidence." Id.
¶5 Aguilar had the burden of proving his factual allegations by a preponderance of the evidence. See Ariz. R. Crim. P. 32.8(c). And, the trial court was "the sole arbit[er] of the credibility of witnesses" at the evidentiary hearing. State v. Fritz, 157 Ariz. 139, 141 (App. 1988); see also Sasak, 178 Ariz. at 186 ("It is the duty of the trial court to resolve any conflicts in the evidence."). To obtain relief based on a claim of ineffective assistance of counsel, Aguilar was required to demonstrate both that counsel's performance was deficient and that he was thereby prejudiced. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
¶6 In its thorough, well-reasoned decision, the trial court correctly identified and addressed Aguilar's claims about the victim's cell phone and counsel's comment about his being "unpredictable." Aguilar's argument on review amounts to a request that this court reweigh the evidence, which we will not do. The trial court's factual determinations were supported by evidence presented at the hearing. We therefore adopt those portions of the court's rulings. See State v. Whipple, 177 Ariz. 272, 274 (App. 1993) (when trial court has correctly ruled on issues raised "in a fashion that will allow any court in the future to understand the resolution[, n]o useful purpose would be served by this court rehashing the trial court's correct ruling in a written decision").
Although Aguilar testified he had informed trial counsel that the victim's contact information was in his phone, the court discredited that testimony in view of counsel's testimony denying that she had seen the note about the victim and the phone. --------
¶7 Although we grant the petition for review, relief is denied.