State v. Flores

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ALFREDO MAURICIO FLORES, Petitioner.

No. 1 CA-CR 24-0455 PRPC

FILED 02-20-2025

Petition for Review from the Superior Court in Maricopa County
No. CR2020-138136-001
The Honorable Ronee Korbin Steiner, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Philip D. Garrow
Counsel for Respondent

Alfredo Mauricio Flores, Florence
Petitioner
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Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Anni Hill Foster and Judge Michael J. Brown joined.

M c M U R D I E, Judge:

¶1 Alfredo Mauricio Flores petitions this court to review the
superior court’s order denying his post-conviction relief (“PCR”) petition
filed under Arizona Rule of Criminal Procedure (“Rule”) 32.1. We grant
review but deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 Two victims alleged that Flores molested them when they
were around six years old. The victims did not know each other. They and
their mothers had never spoken with each other, and the events occurred
at least four years apart. After the victims and their mothers reported the
assaults to the police, both investigations went inactive. State v. Flores,
1 CA-CR 22-0035, 2022 WL 3755735, at *1, ¶¶ 3-4 (Ariz. App. Aug. 30, 2022)
(mem. decision) (as amended). Police reopened the investigations in 2020,
interviewing one victim and reviewing the other’s forensic interview. Id. at
*1, ¶ 5. After a trial, a jury convicted Flores of two counts of sexual conduct
with a minor, a class 2 felony, and one count of attempted sexual conduct
with a minor, a class 3 felony.

¶3 Flores appealed his convictions, and we affirmed. Flores,
1 CA-CR 22-0035, at *1, ¶ 1. He then petitioned the superior court for PCR.
After his counsel found no arguable claims, Flores submitted a pro se
petition for PCR. The superior court dismissed his petition, and he
petitioned this court for review. We have jurisdiction under Article 6,
Section 9 of the Arizona Constitution, Arizona Revised Statutes (“A.R.S.”)
§§ 13-4031 and -4239, and Rule 32.16.

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Decision of the Court

DISCUSSION

¶4 Flores brings six claims on review: ineffective assistance of
counsel (“IAC”), insufficient evidence, actual innocence, destroying
exculpatory evidence, statute of limitations, and due process.1

¶5 A petitioner must strictly comply with the Arizona Rules of
Criminal Procedure to be eligible for PCR. State v. Evans, 252 Ariz. 590, 595,
¶ 7 (App. 2022). A PCR claim is subject to summary dismissal if the alleged
facts are unlikely to change the verdict, State v. Amaral, 239 Ariz. 217, 220,
¶ 11 (2016), and the court must dismiss the petition when it contains no
claim which “presents a material issue of fact or law” that would entitle the
defendant to relief, Ariz. R. Crim. P. 32.11(a). A petitioner must show the
superior court abused its discretion by denying the petition to be entitled
to relief. State v. Reed, 252 Ariz. 236, 238, ¶ 6 (App. 2021). We review the
court’s interpretation of the Arizona Rules of Criminal Procedure and its
legal conclusions de novo. State v. Mendoza, 248 Ariz. 6, 14-15, ¶ 12 (App.
2019) (Rules of Criminal Procedure); State v. Pandeli, 242 Ariz. 175, 180, ¶ 4
(2017) (legal conclusions).

¶6 Flores fails to provide record citations in either his PCR
petition or his petition for review. He is ineligible for relief on those
grounds alone. Ariz. R. Crim. P. 32.7(b) (A PCR petition must “contain[]
citations to relevant portions of the record.”); Ariz. R. Crim. P. 32.16(c)(2)(C)
(A petition for review must contain “specific references to the record for
each material fact.”). But, in addition, most of his claims are precluded from
review.

¶7 On direct appeal, this court determined that sufficient
evidence supported the verdicts, Flores, 1 CA-CR 22-0035, at *2, ¶¶ 10-11,
so Flores’s claim of insufficient evidence is barred, Ariz. R. Crim. P. 32.2(b).
Actual innocence is a separate claim requiring new evidence that the
defendant is innocent. See Ariz. R. Crim. P. 32.1 (e), (h) (Newly discovered

1 Flores also notes, with the record supporting his assertion, that he
did not receive notice from the superior court granting him more time to
file a reply, and thus he failed to reply. Even if this lack of notice amounted
to error, Flores fails to show that it probably would have changed his
verdicts or sentences, so we do not consider it further. See State v. Amaral, 239 Ariz. 217, 220, ¶ 11 (2016) (If the facts alleged by petitioner “would not
have probably changed the verdict or sentence, then the claim is subject to
summary dismissal.”).

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material facts entitle a defendant to relief if they clearly and convincingly
prove that he or she could not reasonably be found guilty beyond a
reasonable doubt.); Evans, 252 Ariz. at 598, ¶ 30 (“Restating arguments
about the trial record does not establish a Rule 32.1(h) claim.”). Meanwhile,
Flores’s due process, destroying evidence, and statute of limitations claims
are barred because they could have been raised on direct appeal. Ariz. R.
Crim. P. 32.2(a)(3) (A defendant is precluded from raising claims he waived
at trial, appeal, or previous post-conviction proceedings.).

¶8 What remains, then, are Flores’s IAC claims. We review these
claims because they may only be considered for the first time on PCR. State
ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20 (2007).

¶9 To bring a colorable IAC claim, a petitioner must prove
deficient performance by counsel and prejudice to his or her case. Strickland
v. Washington, 466 U.S. 668, 687 (1984); State v. Bennett, 213 Ariz. 562, 567,
¶ 21 (2006). Failure to prove either dooms an IAC claim. Bennett, 213 Ariz.
at 567, ¶ 21. Deficient performance considers “whether counsel’s
representation fell below an objective standard of reasonableness.” Hinton
v. Alabama, 571 U.S. 263, 272 (2014) (quotation omitted). Counsel’s
performance is measured against “reasonableness under prevailing
professional norms,” id. at 273 (quotation omitted), and the deficiency must
be established by “demonstrable reality,” not mere speculation, State v.
Miller, 251 Ariz. 99, 102, ¶ 10 (2021). Prejudice requires the petitioner to
show “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. “The likelihood of a different result
must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86,
112 (2011).

¶10 At the outset, we note that a claim of IAC considers counsel’s
deficiencies, not the actions of the court, prosecutors, victims, or law
enforcement. See, e.g., Strickland, 466 U.S. at 684-86 (An IAC claim arises
under a defendant’s Sixth Amendment right to counsel for his or her
defense.). Thus, we only consider Flores’s claims against his counsel.

¶11 Flores argues his counsel was ineffective because he (1) did
not know about Flores’s case when they met, (2) failed to sever the two
victims into separate trials, (3) flirted with the prosecutors, (4) could not
properly present his PowerPoint presentation, (5) failed to pay sufficient
attention to inconsistencies in the testimony, and (6) failed to impeach
witnesses. Because Arizona courts have not recognized a claim for
cumulative IAC, Pandeli, 242 Ariz. at 191, ¶ 69, at least one claim must, on

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its own, show counsel’s deficiency and prejudice to the case for Flores to
prevail. None do.

¶12 As for the claims that counsel did not initially know about the
case and flirted with prosecutors, Flores failed to show these actions
prejudiced his case. The alleged events do not appear to have occurred
during critical stages of the proceedings, such as during a substantive
hearing or in front of the jury. As a result, we cannot say that these actions
would have affected the judge or jury and had a substantial likelihood of
affecting the results in this case.

¶13 As for the claims that counsel failed to pay sufficient attention
to inconsistencies or to impeach witnesses, the record fails to support these
claims. Indeed, many issues Flores argues were raised by counsel during
cross-examinations and closing. Without more evidence, we cannot say
counsel’s performance fell below the objective standard of reasonableness.

¶14 Flores fails to demonstrate that counsel’s inability to present
a PowerPoint was objectively unreasonable. He presents no evidence of a
standard requiring counsel to have electronic presentations for the jury and
therefore failed to show the lack of presentation arose to the level of
deficient performance.

¶15 Finally, Flores failed to show that counsel should have
severed the two victims’ trials. Joint trials are generally the rule rather than
the exception. State v. Allen, 253 Ariz. 306, 333, ¶ 56 (2022) (citation omitted).
Offenses joined because they are of a similar character may be severed only
if the evidence of the offenses is not cross-admissible in separate trials. Ariz.
R. Crim. P. 13.3, 13.4(b). But Flores did not argue why his charges should
be tried separately or why the evidence of the offenses would be
inadmissible in separate trials. Reed, 252 Ariz. at 238, ¶ 6 (Petitioner bears
the burden of proving he or she is entitled to relief.). Thus, Flores failed to
show counsel’s deficiency.

¶16 Flores failed to bring more than speculation that he received
assistance from ineffective counsel. As a result, we deny relief.

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CONCLUSION

¶17 We grant review but deny relief.

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

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