State v. Jaramillo, 1 CA-CR 15-0671-PRPC

Jaramillo was convicted by a jury of six counts of armed robbery, six counts of kidnapping, and one count of misconduct involving weapons; court found two historical priors and imposed concurrent presumptive prison terms (15.75 years for robbery/kidnapping; 10 years for weapons).
This Court affirmed his convictions and sentences on direct appeal; mandate issued December 8, 2011.
Jaramillo filed a notice of post-conviction relief (PCR) in January 2012 challenging, among other things, appellate counsel’s failure to raise that a pretrial line-up/identification was unduly suggestive.
At the PCR evidentiary hearing, Jaramillo presented a retired police officer’s opinion that the line-up was unduly suggestive; he offered no direct evidence about appellate counsel’s decision-making.
The superior court found the pretrial identification was not unduly suggestive and dismissed the PCR as untimely; on review the Court assumed timeliness but analyzed the ineffective-assistance claim on the merits.
The Court granted review but denied relief, holding Jaramillo failed to show appellate counsel acted unprofessionally or that omission prejudiced the appeal; the superior court’s substantive ruling was supported by the record and law.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate counsel was ineffective for not raising that the pretrial identification was unduly suggestive	Appellate counsel should have raised the line-up identification issue on direct appeal	State: counsel’s omission was not shown to be an unprofessional error and would not have altered the appeal’s outcome	Denied — Jaramillo failed to prove counsel’s performance was deficient or that there was a reasonable probability of a different outcome on appeal
Whether the pretrial identification was unduly suggestive	Line-up was unduly suggestive (expert testimony of retired officer)	State: line-up was not unduly suggestive; superior court’s factual finding supported by record	Court upheld superior court’s finding that the identification was not unduly suggestive
Whether PCR should be dismissed as untimely (procedural bar)	PCR filing was timely (assumed for argument on review)	State argued untimely; superior court dismissed as untimely	Court assumed timeliness for argument but denied relief on merits; superior court’s alternative timeliness finding not necessary to affirm
Standard for evaluating appellate-ineffective-assistance claims	Must show counsel’s failure was unprofessional and prejudiced appeal	State: petitioner must show reasonable probability that raising the issue would have changed appeal outcome	Applied Strickland/Herrera standard; no reasonable probability of a different result shown

Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
State v. Swoopes, 216 Ariz. 390 (App. 2007) (appellate review standard for PCR rulings)
State v. Perez, 141 Ariz. 459 (1984) (affirmance if trial court correct for any reason)
State v. Cantu, 116 Ariz. 356 (App. 1977) (affirmance rule when trial court legally correct for any reason)
State v. Nash, 143 Ariz. 392 (1985) (Arizona ineffective-assistance jurisprudence)
State v. Herrera, 183 Ariz. 642 (App. 1995) (standard for colorable appellate-ineffective-assistance claims)
State v. King, 110 Ariz. 36 (1973) (arguments of counsel are not evidence)
State v. Prion, 203 Ariz. 157 (2002) (abuse-of-discretion standard for identification rulings)