State v. Benitez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BENNETT FRANCISCO BENITEZ, Petitioner.

No. 1 CA-CR 25-0347 PRPC
FILED 04-01-2026

Petition for Review from the Superior Court in Maricopa County
No. CR2016-143212-001
The Honorable Joseph P. Mikitish, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Faith Cheree Klepper
Counsel for Respondent

Law Office of Stephen M. Johnson, Inc., Phoenix
By Stephen M. Johnson
Co-Counsel for Petitioner
STATE v. BENITEZ
Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Daniel J. Kiley and Judge D. Steven Williams joined.

B A I L E Y, Judge:

¶1 Bennett Francisco Benitez seeks review of the superior court’s
order dismissing his post-conviction relief (“PCR”) petition. We grant
review and deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 In September 2016, police responded to a verbal altercation at
a mobile home park involving Benitez. Police reported Benitez followed
the victims to their trailer and intimidated them using gang signs and death
threats. Police searched Benitez’s trailer and found gang paraphernalia
associated with the East Side Los Guada Bloods gang. Benitez later
admitted membership in the gang.

¶3 The State charged Benitez with three counts of threatening or
intimidating, class three felonies; three counts of threatening or
intimidating, class six felonies; and one count of assisting a criminal street
gang, a class three felony.

¶4 Before trial, Benitez moved to exclude evidence of his prior
gang membership. The superior court partially granted his motion but
allowed the State to introduce eye-witness testimony along with
photographs, clothing, and paraphernalia seized from Benitez’s trailer to
show gang-affiliation. During the eight-day jury trial, the State called gang
experts who testified Benitez acted with the intent to promote or assist
criminal conduct by a criminal street gang. After the State rested its case,
Benitez rested without presenting evidence. On multiple trial dates,
Benitez failed to appear, prompting the superior court to issue a bench
warrant before the case was submitted to the jury.

¶5 The jury convicted Benitez on all charges and found the
presence of several aggravating factors. He was sentenced to concurrent
terms of imprisonment, with the longest term being 15 years. On appeal,
we vacated Benitez’s three convictions for threatening or intimidating as
class six felonies but affirmed his convictions and sentences on the

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STATE v. BENITEZ
Decision of the Court

remaining counts. State v. Benitez, 1 CA-CR 19-0458, 2021 WL 4097524 (Ariz.
App. Aug. 5, 2021) (mem. decision).

¶6 Benitez timely filed a PCR notice after requesting multiple
extensions. The superior court summarily dismissed Benitez’s PCR
petition. Benitez timely petitioned for review.

DISCUSSION

¶7 We review a superior court’s ruling on 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.” State
v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017) (citations omitted). We will affirm
the superior court’s decision “if it is legally correct for any reason.” See State
v. Roseberry, 237 Ariz. 507, 508, ¶ 7 (2015).

¶8 Superior courts are not required to conduct evidentiary
hearings “based on mere generalizations and unsubstantiated claims.”
State v. Borbon, 146 Ariz. 392, 399 (1985). “The relevant inquiry for
determining whether the petitioner is entitled to an evidentiary hearing is
whether he has alleged facts which, if true, would probably have changed
the verdict or sentence.” State v. Amaral, 239 Ariz. 217, 220, ¶ 11
(2016). Vague allegations are insufficient to warrant an evidentiary
hearing. See State v. Krum, 183 Ariz. 288, 294-95 (1995) (finding defendant
was not entitled to an evidentiary hearing where defendant’s affidavits
“lack[ed] any reliable factual foundation” and where defendant failed to
present any “substantial evidence” to support his claim).

¶9 Benitez argues the superior court abused its discretion in
finding he had not presented a colorable ineffective assistance of counsel
(IAC) claim and summarily denying his PCR petition without an
evidentiary hearing.

I. Ineffective Assistance of Counsel

¶10 Benitez argues his trial counsel was ineffective for failing to
(1) communicate and provide discovery, (2) secure an investigator, and (3)
retain a gang expert. We disagree.

¶11 “To state a colorable claim of ineffective assistance of counsel,
a defendant must show both that counsel’s performance fell below
objectively reasonable standards and that this deficiency prejudiced the
defendant.” State v. Bennett, 213 Ariz. 562, 567, ¶ 21 (2006) (citing Strickland
v. Washington, 466 U.S. 668, 687 (1984)). To establish a colorable claim of

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STATE v. BENITEZ
Decision of the Court

prejudice, a defendant must “show a ‘reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.’” Id. at 568, ¶ 25 (quoting Strickland, 466 U.S. at 694).
“Failure to satisfy either prong of the Strickland test is fatal to an [IAC]
claim.” Id. at 567, ¶ 21.

¶12 Benitez first contends counsel was ineffective for failing to
communicate and provide discovery. Benitez argues that, because counsel
did not provide him with “all of the discovery and only met with him a few
times prior to trial,” Benitez could not assist or prepare for trial.

¶13 Benitez fails to show counsel’s performance fell below
objectively reasonable standards. General claims of poor communication
alone do not prove deficiency in counsel’s communication. See Borbon, 146
Ariz. at 399 (finding mere generalizations and unsubstantiated claims do
not create a colorable IAC claim); see also State v. Osborne, No. 1 CA-CR 20-
0305, 2020 WL 6578367, at *2, ¶ 6 (Ariz. App. Nov. 10, 2020) (mem. decision)
(citing Borbon, 146 Ariz. at 399) (finding petitioner failed to state a colorable
IAC claim based on “general claims of poor communication with
counsel.”). Here, Benitez points to no instance where counsel provided
deficient communication. In fact, Benitez’s repeated absences before and
during his trial undermine his claim of deficient communication. Without
more than generalized and unsubstantiated claims of poor communication,
Benitez fails to state a colorable IAC claim. See Borbon, 146 Ariz. at 399.

¶14 As for his discovery allegation, Benitez failed to specify which
documents his counsel withheld from him and how these documents
would have probably changed his verdict or sentence. In fact, Benitez’s
petition merely lists categories of discovery that “could have been critical
to [his] defense.”

¶15 And even assuming counsel’s performance was deficient,
Benitez’s IAC claim still fails because he failed to establish prejudice. Under
Strickland, a defendant must establish 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. Here, Benitez offers no proof
that counsel’s failure to communicate and provide discovery would have
changed the outcome of his case. The superior court therefore did not abuse
its discretion by summarily denying this IAC claim on this ground.

¶16 Second, Benitez argues counsel was ineffective for failing to
secure an investigator. Specifically, Benitez argues an investigator could

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STATE v. BENITEZ
Decision of the Court

have located other witnesses and developed “counter-narratives” to the
State’s gang-affiliation theory.

¶17 Mere generalizations and unsubstantiated claims do not
create a colorable IAC claim. Borbon, 146 Ariz. at 399; see State v. Schurz, 176
Ariz. 46, 58 (1993) (finding defendant failed to raise a colorable IAC claim
based on the argument that the verdict would have been different if an
unidentified witness had been found).

¶18 Benitez neither identifies a specific witness nor how this
witness’s testimony could have changed his verdict. Further, though
Benitez contends an investigator could have developed “counter-
narratives” to explain his altercation with the victims, his argument fails, as
mere speculation as to an investigator’s general impact is insufficient to
raise a colorable IAC claim. See Borbon, 146 Ariz. at 399. The court did not
err in summarily dismissing his IAC claim on this ground.

¶19 Finally, Benitez argues counsel was ineffective for failing to
retain or consult a gang expert to rebut the State’s narrative that “turned on
expert-framed symbolism more than concrete criminal acts.” Because the
State relied on experts to present evidence of Benitez’s gang affiliation,
Benitez argues a rebuttal expert could have controverted the State’s theory.
Benitez claims a reasonable probability exists that such evidence could have
resulted in a different outcome.

¶20 An IAC claim fails absent any identification of the witnesses
and a description of their potentially favorable testimony. See Borbon, 146
Ariz. at 399-401 (rejecting defendant’s IAC claim based in part on the failure
to “indicate the names of witnesses [or] include affidavits containing what
testimony they would have offered”); Schurz, 176 Ariz. at 58 (holding that
defendant failed to state a colorable IAC claim based on his complaint that
counsel “failed to spend sufficient effort to locate an unidentified [person]
who was at the scene” because defendant did not explain “what the
[person’s] testimony might have been or how it would have affected the
trial”).

¶21 Benitez identifies no expert witness who could have been
called to testify, nor explains what relevant testimony this unidentified
witness could have offered beyond explaining how Benitez’s acts on that
night could have been interpreted differently. Without identifying a
potential expert witness, explaining potentially favorable testimony, and its
potential effect on his case, Benitez fails to show how counsel was deficient.

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STATE v. BENITEZ
Decision of the Court

Absent a showing of deficiency, Benitez fails to present a colorable IAC
claim.

CONCLUSION

¶22 We grant review and deny relief.

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

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