Petition for Review from the Superior Court in Pima County
No. CR20122221001 The Honorable Javier Chon-Lopez, Judge
Office of Stephanie J. Meade, Tucson By Stephanie J. Meade
Counsel for Petitioner
Presiding Judge Vásquez authored the opinion of the
Court, in which Judge Eppich concurred and Judge Espinosa
VÁSQUEZ, PRESIDING JUDGE.
Randall Smith seeks review of the trial court's order
denying, after an evidentiary hearing, his petition for
post-conviction relief, filed pursuant to Rule 32, Ariz. R.
Crim. P. We grant review and, for the following reasons,
After a jury trial, Smith was convicted of attempted
production of marijuana of an amount less than two pounds.
The trial court suspended the imposition of sentence and
placed Smith on an eighteen-month term of probation. His
conviction stemmed from the discovery, pursuant to a search
warrant, of approximately 130 marijuana plants in his house.
Investigating detectives' initial application for a
search warrant was rejected. That affidavit had alleged as a
basis for probable cause that Smith's son had told
detectives Smith was growing marijuana at the residence,
detectives who had knocked at the front door smelled fresh
marijuana, a drug-detection dog had alerted while outside the
residence, detectives had seen three marijuana plants growing
in the backyard, and Smith (who had stated he had a
medical-marijuana card) then admitted both growing marijuana
at the house and having "something" inside it that
was "none of [the detectives'] business." A
different judge granted a second warrant application, which
included additional information that Smith's water usage
was unusually high and that several windows of the house were
covered in foam and plastic-like the residence of Smith's
son, which also contained marijuana plants.
Smith filed a motion to suppress below, arguing the search
warrant affidavit contained false statements concerning his
water usage. The trial court denied the motion, finding the
remaining information in the warrant affidavit was sufficient
to support a finding of probable cause.
On appeal, Smith argued the trial court had erred by denying
his suppression motion. In addition to repeating his argument
concerning allegations of water usage, he further asserted,
for the first time, that the use of the drug-detection dog
and the detectives' entry into the curtilage of his home
violated his Fourth Amendment rights. We rejected the
argument regarding water usage, but we concluded the use of
the drug-detection dog was improper under Florida v.
Jardines, 569 U.S. 1 (2013). We further concluded,
however, that Smith had not shown resulting prejudice because
the remaining information in the search warrant affidavit
supported a finding of probable cause. As to the claim
detectives had improperly entered the curtilage, we
determined the record was not adequate to address that issue
because Smith had not raised it below and, thus, could not
demonstrate fundamental, prejudicial error on appeal. We
affirmed his conviction and the imposition of probation.
State v. Smith, No. 2 CA-CR 2013-0166 (Ariz. App.
May 7, 2014) (mem. decision).
Smith sought post-conviction relief, arguing his trial
counsel had been ineffective in failing to argue in the
motion to suppress that detectives had violated the Fourth
Amendment by entering the curtilage. The trial court held an
evidentiary hearing at which Smith's trial counsel
testified that he had considered, but declined to raise, an
argument based on the detectives' entry into the
curtilage. As we understand his testimony, he stated he
believed any information in support of probable cause
obtained during that entry had been "rejected" by
the denial of the first warrant application and the later
issuance of a warrant only after detectives had provided
additional information. Thus, counsel concluded that
information was immaterial to the probable-cause finding and
his strongest argument was, therefore, that the warrant
affidavit contained false statements about Smith's water
usage. Counsel further testified that he usually focused on
the stronger available arguments, rather than
"diluting" his case with what he perceived were
The trial court denied relief, concluding counsel had made a
reasoned, tactical decision to raise what he believed to be
the stronger argument in the motion to dismiss that the
statements concerning his water usage were false. The court
also observed that Smith had "provided no other
evidence, such as an expert opinion to the trial court, that
demonstrates [trial counsel's] decision . . . fell below
prevailing professional norms." Because the court
determined Smith had not shown counsel's conduct was
deficient, it did not address whether Smith had demonstrated
prejudice. This petition for review followed.
On review, Smith argues the trial court erred by concluding
counsel's conduct did not fall below prevailing
professional standards. Smith contends that counsel's
testimony demonstrates that he incorrectly believed the
curtilage issue had already been decided and that he did not
investigate that issue. To prevail, Smith "was required
to demonstrate that counsel's conduct fell below
prevailing professional norms and that he was prejudiced
thereby." State v. Denz, 232 Ariz. 441, ¶
6 (App. 2013), citing Strickland v. Washington, 466
U.S. 668, 687-88 (1984).
There is "[a] strong presumption" that counsel
"provided effective assistance, " State v.
Febles, 210 Ariz. 589, ¶ 20 (App. 2005), which
Smith must overcome by providing evidence that counsel's
conduct did not comport with prevailing professional norms,
see State v. Herrera, 183 Ariz. 642, 647 (App.
1995). Moreover, tactical or strategic decisions rest with
counsel, State v. Lee, 142 Ariz. 210, 215 (1984),
and we will presume "that the challenged action was
sound trial strategy under the circumstances, "
State v. Stone, 151 Ariz. 455, 461 (App. 1986).
Thus, "[disagreements as to trial strategy or errors in
trial [tactics] will not support a claim of ineffective
assistance of counsel as long as the challenged conduct could
have some reasoned basis." State v. Meeker, 143
Ariz. 256, 260 (1984). Whether counsel "rendered
ineffective assistance is a mixed question of fact and
law." State v. Pandeli, 242 Ariz. 175, ¶ 4
(2017), quoting Denz, 232 Ariz. 441, ¶ 6. Thus,
we "defer to the trial court's factual findings but
review de novo the ultimate legal conclusion" whether
counsel's conduct fell below prevailing professional
norms and whether Smith was prejudiced. Denz, 232
Ariz. 441, ¶ 6, quoting In re MH2010-002637,
228 Ariz. 74, ¶ 13 (App. 2011); see also
Pandeli, 242 Ariz. 175, ¶ 4.
As we noted above, counsel testified that he believed the
issuing judge found probable cause based solely on the water
usage and presence of window coverings. He further testified
that this belief drove his decision to raise only the
water-usage claim in the motion to suppress. But
counsel's assessment is unsupported by the record,
including counsel's own motion to suppress. Counsel
stated in that motion that the probable-cause finding was
based on all the information provided to the issuing judge.
And nothing in the transcript of the warrant application
suggests the issuing judge had restricted the basis of her
probable-cause finding to the water usage and window
coverings. Thus, we disagree with our dissenting colleague
that our determination of counsel's ineffectiveness is
based on hindsight. The record here demonstrates that counsel
did not base his decision on a reasoned evaluation of the