State v. Nunez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IRVING SERHEI NUNEZ, Petitioner.

No. 1 CA-CR 24-0325 PRPC
FILED 03-27-2025

Petition for Review from the Superior Court in Maricopa County
No. CR2014-001203-001
The Honorable Suzanne E. Cohen, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Quinton S. Gregory
Counsel for Respondent

Maricopa County Office of the Legal Advocate, Phoenix
By Grace M. Guisewite
Counsel for Petitioner

STATE v. NUNEZ
Decision of the Court

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Samuel A. Thumma joined.

P A T O N, Judge:

¶1 Irving Serhei Nunez petitions for review from the dismissal
of his first petition for post-conviction relief (“PCR petition”). We grant
review but deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 In February 2014, Nunez shot and killed the victim after an
argument. Two individuals saw the incident and provided statements to
police. Nunez immediately fled to Mexico and was eventually extradited
to Arizona in July 2021. In May 2022, Nunez pled guilty to second-degree
murder. At sentencing, the court noted that “the evidence based on the
presentence report and all the information the Court has,” shows “that
there was no justification at all for [Nunez] going into [his] home, getting a
gun and shooting [the victim] in the back.” After weighing the aggravating
and mitigating circumstances, the court imposed an aggravated sentence of
twenty-years’ imprisonment, awarding him 457 days of presentence
incarceration credit.

¶3 In June 2023, Nunez filed a PCR petition under Arizona Rule
of Criminal Procedure (“Rule”) 33.1(a), (e), and (h) arguing, as relevant
here, that his counsel provided ineffective assistance by not having the
witnesses’ interviews transcribed to English because they contained
information that counsel should have introduced as mitigation at
sentencing. The superior court found that Nunez could not show the
outcome of the proceeding would have been different because the
transcribed witness interviews did not significantly differ from the police
report summaries. It summarily dismissed his petition. This petition for
review followed.

DISCUSSION

¶4 We review the superior court’s denial of a PCR petition “for
an abuse of discretion, which occurs if the court makes an error of law or
fails to adequately investigate the facts necessary to support its decision.”

2

STATE v. NUNEZ
Decision of the Court

State v. Bigger, 251 Ariz. 402, 407, ¶ 6 (2021). The petitioner bears the burden
of establishing an abuse of discretion. See State v. Poblete, 227 Ariz. 537, 538,
¶ 1 (App. 2011). When the superior court determines that a petition
presents no “material issue of fact or law that would entitle the defendant
to relief under [Rule 33], the court must summarily dismiss the petition.”
Ariz. R. Crim. P. 33.11(a). We will affirm the superior court’s decision “if it
is legally correct for any reason.” State v. Roseberry, 237 Ariz. 507, 508, ¶ 7
(2015).

¶5 Nunez argues the superior court erred by dismissing his
ineffective assistance of counsel claim. He claims that not having the two
witness statements transcribed into English meant his counsel, who did not
speak Spanish, could neither discuss the two witness statements with him
nor present them to the sentencing court. As a result, Nunez contends he
was deprived of critical mitigation evidence that could have supported the
court imposing a reduced sentence based on the Section 13-701(E)(3)
statutory mitigator instead of the aggravated sentence it imposed. See
A.R.S. § 13-701(E)(3) (“The defendant was under unusual or substantial
duress, although not to a degree that would constitute a defense to
prosecution.”).

¶6 Nunez also argues the superior court abused its discretion in
finding that the transcribed interviews would not have changed his
sentence because they “were not materially different from the departmental
report summaries” that were part of the case record. In dismissing his
claim, the superior court noted that Nunez’s trial counsel relied on the
police summaries of these interviews, which did “not differ significantly”
from the two witnesses’ interviews that were later transcribed. The
superior court thus found Nunez could not “show the outcome would have
been different.” Nunez reasserts his argument that the police report
summaries materially differed from the transcripts.

¶7 To prove ineffective assistance of counsel, Nunez must show
that (1) counsel performed below professional norms and (2) the
defendant’s rights were prejudiced such that there was a “reasonable
probability” of a different result. Strickland v. Washington, 466 U.S. 668, 687-
88 (1984); State v. Nash, 143 Ariz. 392, 397 (1985) (adopting Strickland); State
v. Salazar, 173 Ariz. 399, 414 (1992). “Failure to satisfy either prong of the
Strickland test is fatal to an ineffective assistance of counsel claim.” State v.
Bennett, 213 Ariz. 562, 567, ¶ 21 (2006).

¶8 The summaries, however, accurately reflected the substance
of the transcripts of the witnesses’ interviews that were translated into

3

STATE v. NUNEZ
Decision of the Court

English as part of this proceeding. One witness stated that “[the victim]
shove[d] [Nunez] and then kicked him in the lower extremity,” and the
other witness told police that “[the victim] appeared to be drunk and was
pushing [Nunez] a lot,” “tried punching [Nunez],” and “kicked [Nunez] on
the leg.” The transcripts of the statements of both witnesses provided
slightly more detail about the interaction between the victim and Nunez,
but the statements regarding the victim’s behavior towards Nunez did not
materially differ from the summaries. Nunez has not shown what missing
details would have materially altered the result of the proceeding, nor does
he explain how his counsel’s actions were so deficient as to constitute
ineffective assistance.

¶9 Further, in Nunez’s sentencing memorandum presented to
the court, he described that the victim threatened him during the incident,
and asked the court to consider eight mitigating factors. Nunez has not
shown how his counsel was deficient in not presenting the witnesses’
transcribed statements to the sentencing court as additional mitigation. As
the superior court noted at sentencing, after Nunez and the victim initially
fought, they went their separate ways. Nunez went home and retrieved a
gun and upon returning, they argued again, at which time the victim kicked
Nunez according to one of the witnesses. Nunez then shot and killed the
victim. Even assuming counsel’s failure to transcribe and present the
witnesses statements to the court fell below reasonably objective standards,
Nunez has failed to show there was “a reasonable probability” he would
have received a lesser sentence. See Strickland, 466 U.S. at 694. As
previously mentioned, Nunez’s sentencing memorandum included
information about the victim’s “threaten[ing]” behavior towards Nunez,
the court stated it considered all the evidence presented, and it weighed the
aggravating and mitigating factors before imposing Nunez’s sentence.
Nunez has thus failed to prove prejudice.

CONCLUSION

¶10 We grant review and deny relief.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

4