Court of Appeals of Arizona, Second Division, Department B
Not for Publication Rule 111, Rules of the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF MARICOPA COUNTY Cause No. CR2008124116001DT Honorable Colleen L. French, Judge Pro Tempore
William G. Montgomery, Maricopa County Attorney By Diane Meloche Attorneys for Respondent.
Danny Rodriguez Florence In Propria Persona
GARYE L. VÁSQUEZ, Presiding Judge
¶1 Petitioner Danny Rodriguez seeks review of the trial court's order denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P., in which he alleged he had received ineffective assistance of counsel. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). For the reasons stated below, we grant the petition for review and grant relief on two of Rodriguez's claims of ineffective assistance of counsel.
¶2 After a jury trial, Rodriguez was convicted of sexual conduct with a minor under the age of fifteen, based on his having engaged in sexual intercourse with a thirteen-year-old girl. The trial court imposed a presumptive twenty-year sentence. Rodriguez's conviction and sentence were affirmed on appeal. State v. Rodriguez, No. 1 CA-CR 08-0969 (memorandum decision filed Feb. 9, 2010). Rodriguez thereafter initiated a proceeding for post-conviction relief, and appointed counsel filed a notice stating she had reviewed the record and was "unable to find any claims for relief to raise in post-conviction proceedings."
¶3 In a pro se petition, however, Rodriguez raised claims of ineffective assistance of trial and appellate counsel. He maintained trial counsel had been ineffective in (1) "interfering with his right to testify at trial, " (2) failing to object to certain questions during cross-examination and statements in the state's closing argument, (3) inadequately investigating the case in several regards, (4) not impeaching the victim with prior inconsistent statements, and (5) not objecting to the restitution ordered or requesting a restitution hearing. He also claimed appellate counsel had been ineffective because she failed to challenge the trial court's denial of Rodriguez's motion to contest the victim's statements pursuant to Rule 608, Ariz. R. Evid. The court summarily denied relief.
¶4 On review Rodriguez repeats his arguments made below and contends the trial court abused its discretion in determining he had not presented a colorable claim of ineffective assistance of counsel. To present such a claim, a defendant must show that counsel's performance was deficient under prevailing professional norms and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Ysea, 191 Ariz. 372, ¶ 15, 956 P.2d 499, 504 (1998). "A colorable claim of post-conviction relief is 'one that, if the allegations are true, might have changed the outcome.'" State v. Jackson, 209 Ariz. 13, ¶ 2, 97 P.3d 113, 114 (App. 2004), quoting State v. Runningeagle, 176 Ariz. 59, 63, 859 P.2d 169, 173 (1993). And if a defendant fails to make a sufficient showing on either element of the Strickland test, the court need not determine whether the other element was satisfied. State v. Salazar, 146 Ariz. 540, 541, 707 P.2d 944, 945 (1985).
¶5 We first address Rodriguez's claim that counsel interfered with his right to testify at trial. Although "disagreements in trial strategy will not support a claim of ineffective assistance of counsel, . . . certain basic decisions transcend the label 'trial strategy' and are exclusively the province of the accused: namely, the ultimate decisions on whether to plead guilty, whether to waive a jury trial, and whether to testify." State v. Nirschel, 155 Ariz. 206, 208, 745 P.2d 953, 955 (1987), quoting State v. Lee, 142 Ariz. 210, 215, 689 P.2d 153, 158 (1984). "Counsel is encouraged to provide guidance and to urge the client to follow professional advice." Lee, 142 Ariz. at 215, 689 P.2d at 158. A problem arises, however, when "the defendant unretreatingly demands that he be given the opportunity to testify but his counsel in direct contradiction to the defendant's wishes refuses to put him on the stand." State v. Martin, 102 Ariz. 142, 147, 426 P.2d 639, 644 (1967). A defendant must, however, "make his objection known at trial; not as an afterthought." Id.
¶6 Although Rodriguez now claims he wished to testify, he points to nothing in the record to suggest he asserted that desire at trial. Indeed, during a discussion on a motion in limine, the court and counsel discussed whether testimony about Rodriguez's belief about the victim's sexual history would be admitted; counsel asserted that Rodriguez likely would not be testifying and Rodriguez did not suggest otherwise. Because Rodriguez has not established that he asserted his desire to testify at trial, we cannot say the trial court abused its discretion in concluding he did not establish a colorable claim of ineffective assistance on this point.
¶7 Rodriguez also maintains counsel's performance was deficient because he failed to object when the prosecutor asked the manager of the gas station where Rodriguez worked whether it was possible for someone else to enter Rodriguez's code in the station's time clock, making it appear he was at work when he was not. And he maintains counsel should have objected when the prosecutor argued in closing that this was the case. He contends this line of questioning and argument was "speculative" because his manager "had no personal knowledge, nor any other facts, which showed that Rodriguez did, indeed, have anyone else clock him in or out during his workshift."
¶8 But the manager did not testify that someone else had entered Rodriguez's code into the clock, merely that it was possible. And Rodriguez does not explain on what grounds an objection to that evidence, which was clearly within the witness's knowledge as manager of the station, would have been successful. Likewise, because a "prosecutor has wide latitude in actual discussion of the evidence, " State v. Hannon, 104 Ariz. 273, 275, 451 P.2d 602, 604 (1969), Rodriguez has not established that an objection to the prosecutor's reference to this evidence would have been successful. Nor did he provide the trial court with any evidence to support a claim that failure to object to this line of questioning or argument constituted deficient performance. See State v. Goswick, 142 Ariz. 582, 586, 691 P.2d 673, 677 (1984) (counsel presumed to have acted properly unless petitioner can show counsel's decisions not tactical, "but, rather, revealed ineptitude, inexperience or lack of preparation"); see also Ariz. R. Crim. P. 32.5; State v. Borbon, 146 Ariz. 392, 399, 706 P.2d 718, 725 (1985) (unsubstantiated claim witness would give favorable testimony does not compel evidentiary hearing); State v. Donald, 198 Ariz. 406, ¶¶ 17, 21, 10 P.3d 1193, 1200, 1201 (App. 2000) (to obtain post-conviction evidentiary hearing, defendant should support allegations with sworn statements).
¶9 Rodriguez next contends counsel was ineffective in failing "to investigate and procure potentially exculpatory evidence, " specifically surveillance video of the gas station in which he worked and the testimony of a co-worker who had worked with Rodriguez on the night the crime took place. But, Rodriguez provided no evidence that it would have been possible for counsel to have obtained the video or to locate the co-worker, nor did he present any evidence demonstrating what the co-worker's testimony would have been had she been found. Indeed, on the record before us, Rodriguez's claim that this evidence would have been beneficial to his defense is purely ...