Court of Appeals of Arizona, Second Division, Department B
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF YAVAPAI COUNTY Cause No. P1300CR20090209 Honorable Tina R. Ainley, Judge
Sheila Sullivan Polk, Yavapai County Attorney, Steven J. Sisneros, Attorneys for Respondent
David Goldberg, Attorney for Petitioner
PETER J. ECKERSTROM, Judge
¶1Vaughn Denz petitions this court for review of the trial court's orders denying his petitions for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb those rulings unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We grant review and, because trial counsel performed deficiently by failing to make a reasoned decision to forgo consultation with an independent medical expert, and because that deficiency prejudiced Denz, we grant relief
¶2 Denz was convicted after a jury trial of child abuse and two counts of aggravated assault and sentenced to concurrent prison terms, the longest of which are eighteen years. We affirmed his convictions and sentences on appeal. State v. Denz, No. 1 CA-CR 09-0829 (memorandum decision filed Oct. 28, 2010). Denz's convictions stemmed from an incident in which his infant son sustained skull fractures, a torn frenulum, liver and spleen lacerations, and a bruised adrenal gland. Medical examination also revealed healing rib fractures. Denz claimed he had accidentally dropped the infant while changing his diaper and the infant had landed face-first onto a carpeted floor. Several medical experts testified, however, that the infant's injuries were inconsistent with Denz's explanation. A medical doctor further testified that the infant's abdominal injuries could only have resulted from intentional blows to his stomach.
¶3 Denz sought post-conviction relief, raising a claim of actual innocence and asserting that trial counsel had been ineffective in failing to present testimony by an independent medical expert and in failing to present character evidence "that would have confirmed [Denz] was not violent with children but a patient and trusted caregiver." He further asserted counsel had been ineffective in failing to seek dismissal of "two of the three child abuse related charges as multiplicitous." In support of his claims, Denz provided an affidavit by a forensic pathologist stating he had reviewed the evidence and would have testified that the infant's liver and spleen lacerations were not consistent with a blow but instead were "consistent with deceleration injuries" from a fall; that "[o]ne or more of the skull abnormalities" might "not necessarily be fractures"; that a "bone fragility disorder" could not be excluded; and that "nothing about the imaging or critical findings . . . [wa]s specific for, or characteristic of, " non-accidental injury. Denz additionally included unsworn letters from several individuals generally claiming he was unlikely to harm a child.
¶4 The trial court determined Denz's "claims related to the sufficiency of the evidence and multiplicity are precluded" and he had not presented a colorable claim that counsel had been ineffective "by failing to present character witnesses." It determined, however, that his claim regarding an independent medical expert was colorable and held an evidentiary hearing on that claim. After that hearing, the court denied Denz's petition for post-conviction relief, concluding that counsel had made a reasoned tactical decision not to consult with, or seek testimony from, an independent medical expert and that, in any event, counsel's conduct had not prejudiced Denz "in light of all the evidence presented and the fact that [Denz had] fled the State following the child's hospitalization."
¶5 After that ruling, Denz filed a successive petition for post-conviction relief, claiming State v. Sosnowicz, 229 Ariz. 90, 270 P.3d 917 (App. 2012), constituted a significant change in the law pursuant to Rule 32.1(g). He argued Sosnowicz was retroactively applicable and would have prohibited the experts in his case from opining that "the child's injuries were 'non-accidental', 'intentional' and the result of 'child abuse.'" The trial court summarily rejected that claim, concluding Sosnowicz was not a significant change in the law that would affect Denz's convictions. Denz then filed petitions for review of the denial of his initial and successive petitions for post-conviction relief. We granted his request to consolidate those petitions.
¶6 We first address Denz's argument that the trial court erred in rejecting his claim that counsel should have consulted with an independent medical professional about the infant's injuries. To prevail on this claim, Denz was required to demonstrate that counsel's conduct fell below prevailing professional norms and that he was prejudiced thereby. Strickland v. Washington, 466 U.S 668, 687-88 (1984). Whether counsel rendered ineffective assistance is a mixed question of fact and law. See id. at 698 ("[B]oth the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact."). "[W]e defer to the trial court's factual findings but review de novo the ultimate legal conclusion." In re MH2010-002637, 228 Ariz. 74, ¶ 13, 263 P.3d 82, 86 (App. 2011).
¶7 In addressing a claim of ineffective assistance of counsel, we must presume "counsel's conduct falls within the wide range of reasonable professional assistance" that "'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955); accord State v. Schurz, 176 Ariz. 46, 58, 859 P.2d 156, 168 (1993). To overcome this presumption, Denz was 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. Goswick, 142 Ariz. 582, 586, 691 P.2d 673, 677 (1984). Thus, disagreements about trial strategy will not support an ineffective assistance claim if "the challenged conduct has some reasoned basis, " State v. Gerlaugh, 144 Ariz. 449, 455, 698 P.2d 694, 700 (1985), even if the tactics counsel adopts are unsuccessful. See State v. Farni, 112 Ariz. 132, 133, 539 P.2d 889, 890 (1975).
¶8 Denz argues that, based on the evidence presented, he "proved" counsel's "decision was incompetent, " "unreasonable, " and "prejudiced [Denz's] defense." At trial, counsel elicited testimony from the state's three medical experts that they could not state with certainty when the infant's injuries—except the torn frenulum—had occurred and that those injuries could have occurred days before the alleged incident and gone unnoticed. Counsel also secured testimony that the infant's torn frenulum could have resulted from a short fall and that the infant's other injuries could have resulted from previous accidents involving other family members. Counsel's closing included argument that, although the state had proven the child had been seriously injured, it had not demonstrated with any certainty when those injuries had occurred and thus had not demonstrated that Denz had caused them. He also ...