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State v. Barker

Court of Appeals of Arizona, Second Division, Department A

September 11, 2013

THE STATE OF ARIZONA, Respondent,
v.
WILLIAM CHARLES BARKER, Petitioner.

Not for Publication Rule 111, Rules of the Supreme Court

PETITION FOR REVIEW FROM THE SUPERIOR COURT OF MOHAVE COUNTY Cause No. CR20071803 Honorable Rick A. Williams, Judge

Matthew J. Smith, Mohave County Attorney By Douglas Ryan Camacho Kingman Attorneys for Respondent.

William Barker Kingman In Propria Persona

MEMORANDUM DECISION

MICHAEL MILLER, Judge.

¶1 William Barker petitions this court for review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Barker has not sustained his burden of establishing such abuse here.

¶2 Following his indictment of aggravated driving under the influence, Barker waived his right to counsel and elected to represent himself. During a joint hearing regarding this case and another case, CR-2007-1123, Barker requested that advisory counsel be appointed. The trial court agreed to appoint advisory counsel but ultimately did not do so, informing Barker at the beginning of his jury trial in CR-2007-1123 that it had spoken to numerous attorneys and that none of them "were able or willing to act as advisory counsel . . . this week." Barker did not object, request that he be appointed counsel, or raise the issue of advisory counsel again.

¶3 Barker was convicted as charged, and the trial court sentenced him to a 4.5- year prison term. After conducting a review pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), we affirmed his conviction and sentence on appeal. State v. Barker, No. 1 CA-CR 10-0065 (memorandum decision filed May 3, 2011). Barker sought post-conviction relief, claiming that the trial court had abused its discretion by granting his request to appoint advisory counsel but failing to do so, thereby violating his right to counsel, and that appellate counsel had been ineffective in failing to obtain transcripts relevant to the issue and raise it on appeal. The trial court summarily denied relief, explaining that its decision to appoint advisory counsel pertained to Barker's pending prosecution in CR-2007-1123 and that Barker had never requested advisory counsel in this case.

4 On review, [1] Barker asserts he is entitled to an evidentiary hearing on his claims, contending a hearing is necessary to demonstrate his "understanding of the extent of the appointment of advisory counsel, " and thus whether he had "waive[d] advisory counsel in both cases." He additionally argues that the trial court's "failure to provide advisory counsel" as promised "violated [his] Sixth Amendment right to counsel." As Barker acknowledges, however, his claim that he was entitled to advisory counsel could have been raised on appeal. Thus, the claim is precluded pursuant to Rule 32.2(a)(3) and the trial court did not err in summarily rejecting it.[2] See State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (appellate court obliged to affirm trial court's ruling if result legally correct for any reason).

¶5 Barker additionally repeats his argument that appellate counsel should have investigated and raised the argument that a trial court cannot withdraw the appointment of advisory counsel after granting a defendant's request, and that the court's conduct here thus violated his Sixth Amendment right to counsel. To establish a colorable claim of ineffective assistance of appellate counsel, Barker must show counsel's performance was deficient and that there is a "reasonable probability . . . but for counsel's unprofessional errors, the outcome of the appeal would have been different." See State v. Herrera, 183 Ariz. 642, 647, 905 P.2d 1377, 1382 (App. 1995).

6 We first reject Barker's suggestion that the denial of advisory counsel implicates his Sixth Amendment right to counsel. There is no constitutional right to advisory counsel. See Locks v. Sumner, 703 F.2d 403, 407-08 (9th Cir. 1983); cf. Ariz. R. Crim. P. 6.1(c) (court "may" appoint advisory counsel upon defendant's waiver of right to counsel). Even assuming, without deciding, that the trial court intended to appoint advisory counsel for Barker in this proceeding, its inability to do so did not violate a constitutional right to advisory counsel.

¶7 Although Barker suggests the trial court abused its discretion by failing to provide him with advisory counsel, he does not develop this argument independently of his constitutional claim, which we have rejected. Cf. State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (insufficient argument waives claim on review). Moreover, he argues only that, "[h]ad appellate counsel raised the issue, it could have been decided by the Court of Appeals." In order to demonstrate prejudice resulting from counsel's purportedly deficient conduct, Barker must demonstrate a reasonable probability the result would have been different—that is, that he would have been entitled to relief on appeal, not merely that we would have addressed the issue. See Herrera, 183 Ariz. at 647, 905 P.2d at 1382. He has not done so, and his claim of ineffective assistance of appellate counsel therefore fails.

¶8 For the reasons stated, although review is granted, relief is denied.

CONCURRING: JOSEPH W. HOWARD, Chief Judge, GARYE L. VÁSQUEZ, Presiding Judge.


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