NOT FOR PUBLICATION

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.

MEMORANDUM DECISION

VÁSQUEZ, Presiding Judge.

¶1 Petitioner Monty Helms seeks review of the trial court's summary denial of his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We grant review and, for the following reasons, deny relief.

¶2 After a jury trial, Helms was convicted of possession of a dangerous drug for sale, possession of drug paraphernalia, and weapons misconduct. The trial court sentenced him to a combination of consecutive and concurrent, presumptive prison terms totaling 12.5 years. We affirmed his convictions and sentences on appeal, and summarized the facts relevant to his claim of insufficient evidence as follows:

State v. Helms, No. 2 CA-CR 2010-0301, ¶¶ 1, 8-9 (memorandum decision filed July 29, 2011). We noted circumstantial evidence that Helms had access to and possessed items found in the safe and explained that another person's "access to the safe does not negate Helms's ability to exercise dominion and control over it" because "[p]ossession need not be exclusive but `may be sole or joint.'" Id. ¶ 11, quoting State v. Miramon, 27 Ariz.App. 451, 452, 555 P.2d 1139, 1140 (1976).

¶3 Helms filed a timely notice of post-conviction relief, and his attorney filed a petition alleging trial counsel had been ineffective in filing an "inadequate" motion to suppress evidence. Specifically, Helms alleged that, although it "appear[ed] from [counsel's] motion" that he intended to challenge the validity of a search warrant based on the "staleness of the information in the [probable cause] affidavit," the case authority counsel cited was limited to application of A.R.S. § 13-3918, which requires execution of a search warrant within five days of its issuance. According to Helms, "[t]he affidavit in this case was stale, and had counsel actually provided caselaw and argued the motion, all the evidence obtained would have been [suppressed]." Helms also argued trial counsel had been ineffective in failing to call two witnesses— Helms's girlfriend and her sister—who would have testified at trial that the safe had belonged to someone named S.H. He supported this second claim with transcripts of interviews with the two women, conducted by an investigator employed by Rule 32 counsel.

¶4 The trial court summarily denied relief. With respect to Helms's claim related to trial counsel's motion to suppress, the court stated, "Petitioner claims that his counsel did not argue the staleness of the information contained in the affidavit. This is incorrect. While counsel did use the five day rule for serving a warrant as an example of staleness, he did argue the age of the information contained in the affidavit" rendered it invalid. The court found the motion "sufficed to bring the issues before the court."

¶5 The trial court also denied Helms's claim that counsel had been ineffective in failing to call two witnesses who would have testified that the safe found in Helms's bedroom did not belong to him. Citing this court's memorandum decision, the court concluded the claim "fails in the face of the findings of the Court of Appeals" that trial evidence was sufficient to establish Helms's possession.

¶6 In his pro se petition for review, Helms repeats the arguments he raised below. He maintains the trial court's ruling is in conflict with Kimmelman v. Morrison, 477 U.S. 365, 385-86 (1986), in which the Supreme Court held counsel's failure to timely file a motion to suppress, due to a "complete lack of pretrial preparation," "fell below the level of reasonable professional assistance." He also seems to argue the ruling violates his constitutional rights and "arbitrarily limits" his ability "to secure further testimony of favorable witnesses" at an evidentiary hearing.1

¶7 We review for an abuse of discretion a trial court's denial of post-conviction relief for failure to state a colorable claim. State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006). "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." Id. ¶ 21, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." Id. To establish a colorable claim of 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. ¶ 25, quoting Strickland, 466 U.S. at 694.

¶8 We agree with the trial court that, during argument on the motion to suppress, counsel adequately "br[ought] the issues before the court." Moreover, Helms has failed to show any reasonable probability that the trial court would have granted the motion had trial counsel cited different authority. In its response to Helms's petition for review, the state points out our supreme court's admonition that "[t]he question of staleness depends more on the nature of the activity than on the number of days that have elapsed since the factual information was gathered"; thus, "where the information evidences activity of a continuous nature the passage of time becomes less significant." State v. Hale, 131 Ariz. 444, 446, 641 P.2d 1288, 1290 (1982). The court appears to have been aware of counsel's argument, and likely would have rejected it, even had counsel cited more appropriate authority. Accordingly, even if counsel had performed deficiently, Helms has failed to state a colorable claim of any resulting prejudice, as required by Strickland.2 See Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d at 68.

¶9 Similarly, Helms failed to establish a colorable claim of counsel's deficiency or resulting prejudice based on the omission of testimony from Helms's girlfriend and her sister. The jury had already heard evidence that the safe did not belong to Helms, and, as the state suggests, the two sisters were subject to impeachment based on their close relationships with Helms, their admissions of drug use, and their seemingly implausible statements made to the police after Helms's arrest.3

¶10 Finally, in a reply to the state's response to his petition for review, Helms raises a number of additional claims. We do not address these claims because they were not properly presented to the trial court. See Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review to contain issues "decided by the trial court[,] . . . which the defendant wishes to present to the appellate court for review"); State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980).

¶11 For the foregoing reasons, we grant review, but we deny relief.