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March 2, 2026 Get Citation Alerts Download PDF Add Note

State v. Vigorito

Court of Appeals of Arizona

• Citations: None known
• Docket Number: 1 CA-CR 25-0342 PRPC

• Precedential Status: Non-Precedential

• Opinion

• Authorities (11)

• Cited By (0)

• Summaries (0)

• Similar Cases (237)

• PDF

Combined Opinion

                        by Andrew M. Jacobs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAEL VIGORITO, Petitioner.

No. 1 CA-CR 25-0342 PRPC
FILED 03-02-2026

Appeal from the Superior Court in Maricopa County
No. CR2019-005050-001
The Honorable Dewain D. Fox, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Respondent

Grand Canyon Law Group LLC, Mesa
By Victoria Wilde
Counsel for Petitioner

MEMORANDUM DECISION

Presiding Judge Andrew M. Jacobs delivered the decision of the Court, in
which Judge Brian Y. Furuya and Judge James B. Morse Jr. joined.
STATE v. VIGORITO
Decision of the Court

J A C O B S, Judge:

¶1 Michael Vigorito petitions this court for review from the
denial of his petition for post-conviction relief under Arizona Rule of
Criminal Procedure (“Rule”) 32. For the reasons stated below, we grant
review of his petition but deny the relief he requests.

FACTUAL AND PROCEDURAL HISTORY

A. Vigorito is Convicted of Aggravated Assault and Disorderly
Conduct With a Deadly Weapon.

¶2 In December 2018, Vigorito, claiming he wanted to prevent
his daughter from driving under the influence, followed her to a bar and
tried to disable her vehicle by deflating its tires. Several individuals,
including S.B., a bar patron, confronted Vigorito in the parking lot. In the
ensuing altercation, Vigorito pulled out a firearm. When the situation
settled, Vigorito left the scene and was later arrested. The State charged
him with one count of aggravated assault with a deadly weapon for
drawing his firearm on S.B., and three counts of disorderly conduct with a
deadly weapon.

¶3 At trial, Vigorito testified he never used his firearm to
threaten S.B. but merely removed it from the holster at his waist to place it
in his car, away from his body. He said he did so because S.B. and the others
who confronted him in the parking lot threatened him, so he wanted to be
unencumbered to defend himself with his hands. He said he never used
his firearm in self-defense because he never believed he needed to.

¶4 Near trial’s end, Vigorito’s counsel asked that the jury receive
a justification instruction for “defensive display of a firearm.” The State
opposed the instruction, arguing the evidence did not support it because
Vigorito “was so very adamant that he did not display his weapon in any
manner meant to be seen by anybody else.” Vigorito’s counsel countered,
citing case law supporting that self-defense and defensive display
instructions are appropriate if supported by the “slightest evidence,” even
if they do not match the defense’s case. After further debate, the court gave
the defensive display instruction, which told the jury it could find Vigorito
was “justified in defensively displaying a firearm” if a reasonable person
would have believed it necessary to protect against the use or attempted
use of unlawful physical force, but that the justification was inapplicable if
the jury found Vigorito “used a firearm during the commission of an
aggravated assault.”

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STATE v. VIGORITO
Decision of the Court

¶5 The State closed by arguing Vigorito could not rely on the
defensive display instruction because he intentionally escalated the
situation by unholstering his firearm and threatening S.B., so he used a
firearm while committing aggravated assault. Vigorito’s counsel argued
Vigorito never assaulted S.B. using a firearm — that he in fact de-escalated
the situation by unholstering his firearm to put it in his car. Still, he urged
the jury to consider whether, even if the other elements of the charged
offenses were met, the State proved beyond a reasonable doubt the
defensive display justification did not apply.

¶6 The jury convicted Vigorito on all four counts. The court
sentenced him to a 7.5-year term and three concurrent 1-year terms of
imprisonment.

B. Vigorito’s Direct Appeal Fails.

¶7 Vigorito appealed. His court-appointed counsel filed an
Anders brief asserting she found no non-frivolous issues for appeal, but
Vigorito filed a supplemental brief. He argued, among other things, that
his trial counsel was ineffective and that the court erred in instructing the
jury on a justification defense. The Court of Appeals found no arguable
issues and affirmed Vigorito’s convictions and sentences.

C. Vigorito Is Denied Post-Conviction Relief.

¶8 Vigorito then petitioned the superior court for post-
conviction relief under Rule 32. He again argued he received ineffective
assistance of counsel (“IAC”) at trial, claiming he was prejudiced by his
counsel’s failure to request two additional justification jury instructions:
self-defense and crime prevention.

¶9 The court summarily dismissed Vigorito’s petition without an
evidentiary hearing. It found Vigorito failed to state a colorable IAC claim
under the two-prong test established in Strickland v. Washington, 466 U.S.
668 (1984), which required Vigorito to demonstrate that (1) his trial
counsel’s performance fell below an objective standard of reasonableness
as defined by prevailing professional norms, and (2) he was actually
prejudiced by his trial counsel’s deficient performance. Id. at 687.

¶10 The court found Vigorito “presented no evidence” of his trial
counsel’s deficient performance. It noted that “the PCR record contains no
declaration of competent counsel opining that the failure to request the self-
defense or crime prevention instructions fell below the objective standard
of reasonableness” on the facts of the case. And it reasoned that this court

3
STATE v. VIGORITO
Decision of the Court

rejected his claim of trial counsel’s deficient performance in denying him
appellate relief.

¶11 The court also found Vigorito failed to establish actual
prejudice. It reasoned that the instructions he said his trial counsel should
have requested were not warranted by the evidence, so the court would not
have given them even if trial counsel requested them. The court explained
the crime prevention instruction was not warranted by the evidence
because Vigorito was not “charged with a crime for attempting to disable
[his daughter’s] vehicle” but for “pointing his firearm at” S.B. And it
reasoned the self-defense instruction was not warranted by the evidence
because Vigorito “never argued that he was justified in using his firearm to
threaten or use physical force against another.”

¶12 Vigorito timely petitioned for review, arguing he stated a
colorable IAC claim. We exercise our discretion to grant review. See A.R.S.
§ 13-4239(G); Ariz. R. Crim. P. 33.16(k).

DISCUSSION

¶13 “We review a court’s ruling on a petition for PCR, including
a denial based on lack of a colorable claim, for an abuse of discretion.” State
v. Anderson, 257 Ariz. 226, 230 ¶ 13 (2024). “It is [Vigorito’s] burden to show
the superior court abused its discretion” by summarily dismissing his Rule
32 petition for failure to state a colorable claim. State v. Reed, 252 Ariz. 236,
238 ¶ 6 (App. 2021). A colorable IAC claim is one that satisfies both the
deficient performance and actual prejudice prongs of the Strickland test, see
infra ¶ 9. “Failure to satisfy either prong . . . is fatal.” State v. Bennett, 213
Ariz. 562, 567 ¶ 21 (2006).

¶14 As to the deficient performance prong, we “must indulge a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action might
be considered sound trial strategy.” State v. Pandeli, 242 Ariz. 175, 181 ¶ 7
(2017) (quoting Strickland, 466 U.S. at 689). “To overcome this presumption,
[Vigorito is] required to show counsel’s decisions were not tactical in
nature, but were instead the result of ‘ineptitude, inexperience or lack of
preparation.’” State v. Denz, 232 Ariz. 441, 444 ¶ 7 (App. 2013) (quoting State
v. Goswick, 142 Ariz. 582, 586 (1984)).

4
STATE v. VIGORITO
Decision of the Court

The Court Did Not Abuse its Discretion in Finding Vigorito
Failed to Demonstrate His Counsel Was Ineffective.

¶15 Requesting our review, Vigorito reasserts that his trial
counsel was deficient in failing to request self-defense and crime prevention
instructions, and that he was prejudiced because that failure deprived the
jury of alternate grounds for his acquittal.

¶16 In assessing Vigorito’s IAC claim, we begin by asking
whether he demonstrated that his counsel’s performance was deficient.
Vigorito says it was because the self-defense and crime prevention
instructions were supported by the “slightest evidence,” so counsel’s
failure to request them was unreasonable. Vigorito is correct that a
defendant is generally entitled to any requested justification instruction
supported by the “slightest evidence.” See State v. Wilson, 253 Ariz. 191, 195
¶ 10 (App. 2022). But the fact that the instructions may have been
supported by the evidence at trial does not mean Vigorito’s counsel was
deficient for failing to request them. “[W]hat justification defenses (if any)
a criminal defendant may wish to press fairly is a question of trial strategy.”
State v. Brown, 258 Ariz. 270, 276 ¶ 28 (App. 2024). And it is Vigorito’s
burden to demonstrate his counsel’s decision not to request the instructions
was “not tactical in nature, but [] instead the result of ‘ineptitude,
inexperience or lack of preparation.’” Denz, 232 Ariz. at 444 ¶ 7 (quoting
Goswick, 142 Ariz. at 586). Vigorito has not met this burden.

¶17 Vigorito cites two out-of-state cases to suggest that omitting
to request potentially applicable jury instructions can be ineffective
assistance, but both cases had stronger facts that made the omissions in
those cases ineffective assistance. In Brooks v. State, the Supreme Court of
Delaware held that “[c]ounsel who forgets to request an instruction that
could help his client fails to meet an objective standard of reasonableness.”
40 A.3d 346, 354 (Del. 2012). But there, defendant’s “trial counsel submitted
an affidavit attributing his failure to request an accomplice instruction to an
oversight.” Id. Here, as the superior court noted, Vigorito provided neither
an affidavit from his trial counsel nor any other “declaration of competent
counsel” explaining why the failure to request specific justification
instructions fell below the objective standard of reasonableness. In
Commonwealth v. Gainer, a Pennsylvania court held that “[w]here alibi
evidence has been introduced and . . . defense counsel has argued an alibi
defense to the jury,” defense counsel was “constitutionally ineffective” for
his subsequent failure to request an alibi instruction. 580 A.2d 333, 337 (Pa.
Super. Ct. 1990). In Gainer, the record was “abundantly clear that the alibi
testimony was a major part of appellant’s defense,” id. at 335, so “[t]here

5
STATE v. VIGORITO
Decision of the Court

was nothing to lose and everything to gain by having the trial court
explain” to the jury the relevance of the alibi evidence, id. at 337 (quoting
Commonwealth v. Nauman, 498 A.2d 913, 916 (Pa. Super. Ct. 1984)). Here,
counsel did not omit to request any instruction central to Vigorito’s defense.

¶18 Because the record here fairly supports interpreting counsel’s
trial decisions as strategic, those decisions are not constitutionally deficient
simply because they could have been more effective. State v. Valdez, 160
Ariz. 9, 14 (1989) (“Defense counsel’s determinations of trial strategy, even
if later proven unsuccessful, are not ineffective assistance of counsel.”). The
record indicates Vigorito’s trial counsel knew he could request additional
justification instructions, see infra ¶ 4, but opted to request only a defensive
display instruction. He may fairly have decided that a self-defense
instruction was more likely than a defensive display instruction to
undermine Vigorito’s testimony about the central issue of the case — the
nature of his firearm display during the confrontation. And he may have
decided against requesting a crime prevention instruction because his client
never argued he was trying to prevent S.B. from committing a crime.

¶19 We need not determine trial counsel’s strategy; it is enough
that the record provides some explanation for it. See Pandeli, 242 Ariz. at
182 ¶ 15 (“Disagreements as to trial strategy or errors in trial will not
support a claim of ineffective assistance of counsel as long as the challenged
conduct could have some reasoned basis.” (quoting State v. Meeker, 143
Ariz. 256, 260 (1984))); State v. Carriger, 143 Ariz. 142, 157 (1984) (finding no
ineffective assistance where counsel’s “failure to offer any instructions may
have been a decision on his part that his client was well served by the
court’s [other] instructions.”). Here, it does. Because Vigorito failed to
demonstrate his trial counsel’s performance was deficient, he failed to state
a colorable IAC claim. We thus need not determine whether Vigorito
demonstrated actual prejudice.

CONCLUSION

¶20 For the foregoing reasons, we grant review of Vigorito’s
petition but deny the relief he requests.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR
6