State v. Vicera-Popoca

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ISAAC VICERA-POPOCA, Petitioner.

No. 1 CA-CR 24-0390 PRPC
FILED 07-24-2025

Petition for Review from the Superior Court in Maricopa County
Nos. CR2006-007252-002, CR2006-007850-001,
CR2006-009592-001, CR2006-011304-002, CR2006-030809-001,
CR2006-121757-002, CR2006-124041-001, CR2007-005420-001,
CR2007-005476-001, CR2008-006137-001

The Honorable David W. Garbarino, Judge
The Honorable Paul J. McMurdie, Judge Retired

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Ballecer & Segal, LLP
By Natalee Segal, Nicholas Bustamante
Counsel for Petitioner

Maricopa County Attorney’s Office, Phoenix
By Jason B. Easterday
Counsel for Respondent
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MEMORANDUM DECISION

Judge D. Steven Williams delivered the Court’s decision, in which
Presiding Judge Jennifer M. Perkins and Judge Andrew M. Jacobs joined.

W I L L I A M S, Judge:

¶1 Isaac Vicera-Popoca petitions this court to review the superior
court’s order dismissing his petition for post-conviction relief (“PCR”), filed
under Arizona Rule of Criminal Procedure (“Rule”) 32. For the following
reasons, we grant review but deny relief.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Based on evidence gathered by law enforcement officers
investigating a series of “nighttime burglaries at strip malls,” a “grand jury
handed up nine indictments” charging Popoca with numerous counts of
burglary and theft, as well as criminal damage and possession of burglary
tools. State v. Popoca, 1 CA-CR 08-0950, 2011 WL 552884, at *1–2, ¶¶ 2, 7
(Ariz. App. Feb. 17, 2011) (mem. decision).1 Following a trial on the charges
in the consolidated indictments (“the first trial”), a jury found Popoca guilty
on most counts and the trial court sentenced him “to concurrent and
consecutive terms of imprisonment totaling thirty-eight years.” Id. at *2,
¶ 8.

¶3 Less than two weeks before the first trial began, a “grand jury
handed up another indictment charging Popoca” with additional counts of
burglary and theft, as well as participation in a criminal syndicate and
assisting a criminal syndicate. Id. at ¶ 9. After the first trial, the State
extended Popoca a plea offer to resolve all remaining charges, which he
rejected. Following a trial on the charges in the tenth indictment (“the
second trial”), a jury found Popoca guilty on most of the counts and the
“trial court sentenced Popoca on these convictions as a repetitive offender

1 For ease of reference, we cite only to the lead cause number for these
consolidated appeals: 1 CA-CR 08-0950; 1 CA-CR 08-0951; 1 CA-CR 08-
0952; 1 CA-CR 08-0953; 1 CA-CR 08-0954; 1 CA-CR 08-0955; 1 CA-CR 08-
0956; 1 CA-CR 08-0957; 1 CA-CR 08-1006; and 1 CA-CR 09-0063.

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to concurrent and consecutive terms of imprisonment totaling forty-six
years.” Id.

¶4 Popoca separately appealed the convictions and sentences
arising out of each indictment. Id. at *3, ¶ 10. This court consolidated the ten
appeals “for appellate disposition” and affirmed the convictions and
sentences. Id. at *3, 8, ¶¶ 10, 30.

¶5 After the appeal, Popoca timely petitioned the superior court
for PCR, raising numerous claims, including ineffective assistance of
counsel. The court summarily dismissed Popoca’s PCR petition. On review,
this court denied relief. The supreme court then vacated both the superior
court’s order and this court’s memorandum decision in part, remanding the
matter to the superior court to:

(1) conduct an evidentiary hearing to determine if [Popoca]
can establish his ineffective assistance of counsel claim
arising out of the offer put on the record at the August 5,
2008 hearing; and

(2) [] determine whether [Popoca] should be able to
supplement his PCR petition as to this issue only.

¶6 On remand, the superior court held a two-day evidentiary
hearing. Based on the evidence presented, and its independent review of
the relevant trial transcripts, the court dismissed Popoca’s PCR petition.

¶7 This petition for review followed. We have jurisdiction under
A.R.S. §§ 13-4031, -4239(C), and Rule 32.16(a).

DISCUSSION

¶8 Popoca contends he was denied effective assistance of counsel
because, among other things, his trial attorney advised him to reject the
State’s plea offer, which would have resolved all the charges prosecuted in
the second trial without increasing the length of his sentence. Had trial
counsel fully explained the benefits of the offer and adequately informed
him of the sentence exposure after the second trial, Popoca claims he would
have accepted the plea offer.

¶9 Absent an abuse of discretion or error of law, we will not
disturb a superior court’s ruling on a petition for post-conviction relief. State
v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). It is the petitioner’s burden to

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show that the court abused its discretion. See State v. Poblete, 227 Ariz. 537,
538, ¶ 1 (App. 2011).

¶10 To prove ineffective assistance of counsel, a petitioner must
show that counsel’s performance fell below objectively reasonable
standards and that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687–88 (1984); see also State v. Nash, 143 Ariz. 392, 397–98 (1985). Specific to plea negotiations, a petitioner must
prove that counsel “either (1) gave erroneous advice or (2) failed to give
information necessary to allow the petitioner to make an informed decision
whether to accept the plea.” State v. Donald, 198 Ariz. 406, 413, ¶ 16 (App.
2000). To establish prejudice, the petitioner “must show a reasonable
probability that, absent his attorney’s deficient advice, he would have
accepted the plea offer” and not proceeded to trial. Id. at 414, ¶ 20 (quotation
and citation omitted). Because “objective evidence” of “motivation” will
“understandably be sparse,” a petitioner “may inferentially show prejudice
by establishing a serious negative consequence, such as receipt of a
substantially longer or harsher sentence than would have been imposed as
a result of a plea.” Id. at ¶ 21. A petitioner “might also show that the risks
inherent in proceeding to trial so substantially outweighed the benefits of
the plea that proceeding to trial was an unreasonable risk.” Id.

¶11 While a defendant has no constitutional right to a plea offer,
“once the State engages in plea bargaining, the defendant has a Sixth
Amendment right to be adequately informed of the consequences before
deciding whether to accept or reject the offer.” Id. at 413, ¶ 14. “To ensure
that a defendant is adequately advised, [d]efense counsel has a duty to
communicate . . . not only the terms of the plea bargain offer, but also the
relative merits of the offer compared to the defendant’s chances at trial.” Id.
at 411, ¶ 9 (internal quotation and citation omitted). “[I]t is the attorney, not
the client, who is particularly qualified to make an informed evaluation of
a proffered plea bargain.” Id. at 412, ¶ 12 (internal quotation and citation
omitted).

¶12 On August 5, 2008, the day after sentencing on the convictions
from the first trial, the trial court held a pretrial conference on the second
trial. Just before the hearing, the prosecutor moved “to determine counsel,”
alerting the court to a potential “Donald issue.” As outlined in the motion
and explained at the hearing, the prosecutor sought a waiver from Popoca
as to any ineffective assistance of counsel claim, asserting that trial counsel
had neither adequately prepared for the second trial nor “clearly advis[ed]”
Popoca of his sentence exposure should he proceed to trial. To support the
latter contention, the trial prosecutor recounted that at the conclusion of the

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first trial, he informed trial counsel that: (1) Popoca faced “a significant
sentence and possible consecutive prison sentences,” and trial counsel
“denied” both possibilities; and (2) if a jury convicted Popoca at the second
trial, the trial court could sentence Popoca to consecutive prison terms, and
trial counsel “denied that would happen” for mere “property crimes.”

¶13 Without directly addressing the prosecutor’s specific claims,
trial counsel simply stated that the trial court had sufficiently advised
Popoca “what he [faced] if convicted.” In response, the prosecutor
acknowledged that the court had, in fact, advised Popoca of his potential
sentence exposure before the first trial, but, he explained, the sentencing
calculus had changed since the first trial’s jury convicted Popoca of multiple
felonies. Trial counsel again assured the court:

Mr. Popoca is well aware of the sentence which he faces on
the new case. He’s well aware that there is a great many years
that he faces if convicted on any of these counts. And, further,
it’s been his intention to go to trial on this second case since
the beginning. Had there been any hope in settling this case,
I would have set it for a settlement conference. My client has
never at any point indicated to me that he is willing to plead
guilty to any of these charges.

After hearing from the parties, the court stated: “I don’t see any basis upon
which to go and delve any further into the State’s motion to determine
counsel.”

¶14 At that point, the trial court directly addressed Popoca:

THE COURT: So, Mr. Popoca, you understand that on the
new charges . . . any felony convictions on the new charges
would be with two historical priors?

THE DEFENDANT: I do, Your Honor.

THE COURT: Okay. And you’re aware that the Court could
give you consecutive sentences for any convictions on the
new charges to the charges that I sentenced you to yesterday?

THE DEFENDANT: I am aware.

THE COURT: Okay. All right. And what’s the highest charge
he faces on the new charges?

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[THE PROSECUTOR]: Class 2.

THE COURT: Just so you understand the potential range, a
Class 2 with two historical priors gives you a range of 10 ½—
the minimum is 10 ½. That would be the supermitigated. And
the maximum would be 35. And the burglary charges, the
range would be from six years—that’s the Class 4 with two
priors—would be a minimum of six years to a maximum of
15. Got it? I mean, I know you’re very intelligent, and I know
you can read this chart, but I just want to make sure you
understand that those are what you’re—

THE DEFENDANT: I do, Your Honor.

THE COURT: I think he gets it.

¶15 Moments later, after the trial court reviewed the calendar and
witness schedule with counsel, the prosecutor made a plea offer on the
record:

[THE PROSECUTOR]: Also, I’m authorized to tell the
defendant if he wants to plead to a 15-year sentence
concurrent to any—concurrent to his other charges, the State
would offer that.

THE COURT: Is that something you have heard before?

[TRIAL COUNSEL]: My client doesn’t indicate that he’s
interested in anything like that. I would just note that I did
advise him that it appears that the State is willing to settle this
case.

THE COURT: It will include the other case as well, [the third
trial]?

[THE PROSECUTOR]: Yes.

THE COURT: You’re not going to get any additional time. It will
all run concurrent to the sentences from yesterday.

[POPOCA]: I understand.

THE COURT: It’s your choice. No? You don’t want the offer?

[POPOCA]: No. No, Your Honor.

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THE COURT: Okay.

(Emphasis added.)

¶16 At the two-day evidentiary hearing held on remand, Popoca,
his mother, his trial attorney, and the trial prosecutor testified. Conflicting
evidence was presented concerning trial counsel’s understanding of
Popoca’s sentence exposure, as well as the advice he gave Popoca both
before and on August 5, 2008.

¶17 Popoca testified that: (1) approximately a year before the first
trial, trial counsel explained his sentence exposure, informing him that if a
jury convicted him as charged, the trial court would impose, at most, a
fifteen-year sentence of imprisonment, with all sentences “run together”;
(2) immediately before the August 5, 2008 hearing, trial counsel told him
that the trial prosecutor had presented a plea offer of fifteen years’
imprisonment to resolve all remaining charges but advised him to reject it
because he was likely to prevail on the first trial’s appeal and would “get
stuck still with 15 years”; (3) trial counsel never advised him that his
sentences from the second trial could run consecutive to his sentences from
the first trial but reiterated that his maximum sentence exposure for all the
charges combined was fifteen years’ imprisonment; (4) he did not track the
aggregate sentence imposed at the first trial’s sentencing hearing, and when
he spoke with trial counsel by phone that evening, counsel told him that he
had received an aggregate fifteen-year sentence; (5) although the trial court
explained his sentence exposure for the second trial at the August 5, 2008
hearing, he did not understand the distinction between concurrent and
consecutive sentences at that time; (6) he had “no time” to privately discuss
the State’s fifteen-year plea offer with trial counsel before rejecting the plea
at the August 5, 2008 hearing; (7) he relied on trial counsel’s advice to reject
the plea offer, believing he was likely to prevail both on appeal from the
first trial and at the second trial; (8) he would have accepted the plea offer
extended by the State on August 5, 2008 if he had all the relevant
information; (9) contrary to trial counsel’s representations to the court, he
never said he would refuse to accept a plea offer; and (10) he relied on trial
counsel’s advice that all his sentences would run concurrent, so he believed
that his maximum sentence exposure if convicted as charged at the second
trial was fifteen years’ imprisonment—the same sentence put forward in
the plea offer.

¶18 Trial counsel testified that: (1) he was arrested less than two
months after the August 5, 2008 hearing and convicted of multiple offenses;
(2) the Arizona State Bar suspended his license and he later surrendered it;

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(3) he never “guaranteed” Popoca that the convictions from the first trial
would be overturned on appeal; (4) Popoca rejected a twelve-year plea offer
extended by the State about a year before the first trial, explaining Popoca
wanted the six-year plea offer given to his codefendants; (5) he told Popoca
he could “beat some of these counts” but also warned that for “a lot of
these[,] you’re going to get convicted”; (6) he never “guaranteed” Popoca
that the trial court would impose concurrent sentences; (7) he may have told
Popoca the court would likely impose only a fifteen-year sentence; (8)
although he lacked any “recollection of specific conversations,” he knew he
discussed the sentencing ranges with Popoca at some point; (9) he used
methamphetamine and crack cocaine during the time he represented
Popoca; (10) around the time he represented Popoca, he repeatedly
experienced periods of not sleeping for days; (11) apart from drug-related
offenses, he was also convicted of perjury for providing false testimony in
his own case; and (12) he never advised Popoca on the fifteen-year plea
offer, explaining the prosecutor “sprung” it on him immediately before the
pretrial conference and they had no time to discuss it.

¶19 The trial prosecutor testified that: (1) in March 2007, he
extended Popoca a twelve and a half year plea offer to resolve all pending
charges, which Popoca refused, stating he “w[ould] never plead guilty”; (2)
he moved to determine counsel because he was concerned that Popoca had
not been advised of the change in sentence exposure following the first
trial’s felony convictions; (3) after the trial court provided a Donald
advisement—informing Popoca of the updated potential range of
punishment—he put a fifteen-year plea offer on the record, to run
concurrent to the sentences imposed in the first trial; (4) during his nearly
thirty-year prosecutorial career, he moved to determine counsel only one
other time; (5) he explained the sentence exposure to trial counsel but trial
counsel denied that the trial court could impose consecutive sentences for
mere “property crimes”; and (6) on August 5, 2008, he wanted the trial court
to appoint independent counsel to advise Popoca.

¶20 Based on the evidence presented and its review of the relevant
transcripts, the superior court dismissed Popoca’s PCR petition on remand.
The court found that Popoca’s prior felony convictions (and self-interest in
reviving the State’s plea offer) undermined his credibility and that trial
counsel’s felony conviction for perjury undermined his credibility.
“Bearing in mind the degree of credibility attributable” to both Popoca and
trial counsel, and characterizing their conflicting testimony as presenting a
“he-said, she-said question,” the court found Popoca failed to establish that
trial counsel: (1) erroneously advised him that he would prevail on the first
trial’s appeal or at the second trial, or (2) failed to provide him with factual

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information concerning the State’s evidence in the second trial “that would
have made a difference with respect to [his] decision to reject the Plea
Offer.”

¶21 Popoca challenges these findings, but the court had the
opportunity to observe the witnesses first-hand, assess their credibility, and
determine the weight to accord their testimony. We will not second-guess
the court’s determinations. See State v. Hoskins, 199 Ariz. 127, 149, ¶ 97 (2000)
(explaining the superior court “is in the best position to evaluate credibility
and accuracy, as well as draw inferences, weigh, and balance”) (quotation
and citation omitted); State v. Sasak, 178 Ariz. 182, 186 (App. 1993) (“It is the
duty of the [superior] court to resolve any conflicts in the evidence, and
where the [superior] court’s ruling is based on substantial evidence, this
court will affirm.”); State v. Fritz, 157 Ariz. 139, 141 (App. 1988) (“The
[superior] court is the sole arbitrator of the credibility of witnesses.”).

¶22 But unlike the aforementioned conflicting evidence, the
evidence concerning trial counsel’s advice to Popoca on the second trial
sentence exposure did not present a “he-said, she-said question.” Popoca
unequivocally testified that trial counsel advised him the trial court would
impose, at most, a fifteen-year sentence and trial counsel, when pressed,
acknowledged that he may have advised that a fifteen-year sentence was
likely the harshest sentence the trial court would impose. More
importantly, the trial prosecutor recounted—both in his motion to
determine counsel and at the hearing on remand—that when he discussed
both the first and second trial sentence exposures with trial counsel, trial
counsel “denied” that Popoca “could possibly be sentenced to consecutive
prison terms” and lengthy sentences for mere “property crimes.”

¶23 Moreover, the record reflects that trial counsel either advised
Popoca not to accept the fifteen-year plea offer immediately before the
August 5, 2008 hearing (according to Popoca), or that he simply failed to
offer any advice concerning the plea offer (according to trial counsel). And
although trial counsel told the court that Popoca resolutely refused to even
consider a plea offer, at the remand hearing, he acknowledged that in 2007,
Popoca had hoped to settle the charges for the same six-year plea bargain
that the State extended to his codefendants. Regardless, the sentencing
calculus changed following Popoca’s felony convictions in the first trial, so
trial counsel was obligated to advise Popoca concerning the new plea offer,
yet trial counsel never requested the opportunity to privately discuss the
plea offer with Popoca before rejecting it.

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¶24 On this record, without question, trial counsel failed to
effectively represent Popoca at the critical plea negotiation stage between
the first and second trials. Indeed, trial counsel failed to: (1) accurately
advise Popoca concerning his sentence exposure for the second trial—
unable to reconcile himself to the reality that the trial court could impose a
sentence far exceeding fifteen years’ imprisonment for mere “property
crimes” despite the trial prosecutor’s admonitions; and (2) provide Popoca
the necessary advice concerning the benefits of the State’s plea offer. See
Donald, 198 Ariz. at 410, ¶ 6 (explaining trial counsel must “properly explain
and compare the terms of the plea agreement offered by the State” and the
sentencing exposure should a jury find him guilty following trial).2

¶25 Having found trial counsel’s representation at the plea
negotiation stage defective, we must determine whether this deficient
performance prejudiced Popoca. Upon independent review of the August
5, 2008 hearing, the superior court found that: (1) the trial court, during its
advisement colloquy, sufficiently informed Popoca of his sentence
exposure should he proceed to the second trial; (2) the trial court explained
that under the State’s plea offer, all remaining charges would be resolved
and a fifteen-year sentence would be imposed concurrent to Popoca’s
sentences from the first trial; and (3) Popoca affirmed his understanding
that he would be sentenced as a repetitive offender for any new convictions
(in the second trial), that new convictions may be stacked, and that he
would receive no additional prison time under the State’s plea offer.

¶26 We likewise conclude that the trial court’s advisement
colloquy and explanation of the plea offer cured any prejudice. The trial
court explained that Popoca’s felony convictions from the first trial changed
the sentencing calculus, increasing his sentence exposure. The court told
Popoca that it could impose sentences for any second trial convictions
consecutive to the sentences imposed for the first trial convictions. Even if
Popoca did not understand the meaning and significance of the term
consecutive—as he claimed at the remand hearing—the court also walked
Popoca through the sentencing range for his class two felony burglary
charges, placing him on notice that he could receive a thirty-five year
sentence, a much longer sentence than the fifteen-year sentence trial counsel

2 Because we conclude trial counsel provided ineffective
representation during the plea negotiation stage, we need not address
Popoca’s contentions that the superior court: (1) failed to properly consider
whether trial counsel’s drug use and associated conduct compromised the
effectiveness of his representation, and (2) improperly precluded evidence
of trial counsel’s ineffective representation during the trials.

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told him reflected the upper limit. Although not discussed specifically in
relation to the second trial’s sentence exposure, just moments after the trial
court explained Popoca’s potential sentence for the second trial charges, it
discussed the merits of the State’s plea offer, clearly advising Popoca that if
he accepted it, the court would impose concurrent sentences, and he would
not receive “any additional time.” While defense counsel has a duty “to
properly explain the relative merits of [a] plea offer in comparison with the
potential sentence that [a defendant faces] if convicted of the charges,”
Donald, 198 Ariz. at 409, ¶ 1, in this case, the trial court provided the
requisite explanation. Therefore, trial counsel’s deficient performance did
not prejudice Popoca and the superior court did not abuse its discretion by
dismissing his PCR petition.

CONCLUSION

¶27 For the foregoing reasons, we affirm.

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

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