Opinion
No. 2 CA-CR 2014-0009-PR
05-13-2014
THE STATE OF ARIZONA, Respondent, v. NATHANIEL BARTON SAMPLE, Petitioner.
William G. Montgomery, Maricopa County Attorney By Michael Mitchell, Special Assistant County Attorney, Phoenix Counsel for Respondent Law Office of Treasure VanDreumel, PLC, Phoenix By Treasure VanDreumel Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Maricopa County
No. CR2009030276002SE
The Honorable Kristin Hoffman, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By Michael Mitchell, Special Assistant County Attorney, Phoenix
Counsel for Respondent
Law Office of Treasure VanDreumel, PLC, Phoenix
By Treasure VanDreumel
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.
KELLY, Presiding Judge:
¶1 Petitioner Nathaniel Sample was convicted following a jury trial of assault, aggravated assault, and assisting a criminal street gang. This court affirmed the convictions and sentences on appeal. State v. Sample, No. 1 CA-CR 09-0964 (memorandum decision filed Feb. 23, 2012). In this petition for review, Sample contends the trial court abused its discretion by dismissing summarily his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., in which he raised claims of ineffective assistance of counsel and trial error in the admission of evidence. "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). We see no such abuse here.
¶2 In his Rule 32 petition, Sample asserted trial counsel had been ineffective in failing to interview or investigate the background of the state's expert on gang activity before trial; to timely notice a defense expert on gang activity, who then would have been permitted to testify to rebut the state's expert's testimony; to object to certain testimony by the state's expert that Sample was guilty of the charged offenses, including certain legal and factual conclusions; and, to request certain jury instructions, including an instruction on mere presence. Sample also asserted reversible trial error occurred, resulting in a violation of his due process rights when (1) the state improperly commented on his silence before officers had given him the Miranda warning, Miranda v. Arizona, 384 U.S. 436 (1966), and (2) evidence was admitted establishing he had refused to provide officers with the combination to a safe after he was given the Miranda warning.
¶3 The trial court articulated the correct legal standard for determining whether a defendant has raised a colorable claim of ineffective assistance of counsel, as set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and Arizona cases applying the Strickland test. The court then identified and examined under this standard each of the instances in which Sample had alleged trial counsel's performance was deficient and prejudicial, concluding Sample had not established both elements of the Strickland test, and explaining the bases for that conclusion. See Strickland, 466 U.S. at 687 (to establish claim of ineffective assistance, defendant must show counsel's performance fell below prevailing professional norms and outcome of case would have been different but for deficient performance). The court also rejected the claims of trial error.
¶4 On review, Sample essentially reasserts the claims he raised in his Rule 32 petition. With respect to the claims of ineffective assistance of trial counsel, he has not sustained his burden of establishing the trial court abused its discretion in finding Sample had failed to raise colorable claims for relief. State v. Fillmore, 187 Ariz. 174, 180, 927 P.2d 1303, 1309 (App. 1996) ("[t]o avoid summary dismissal and achieve an evidentiary hearing on a post-conviction claim of ineffective assistance of counsel," petitioner must raise colorable claim on both parts of Strickland test). We therefore adopt the court's ruling on these claims. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993).
¶5 As the state correctly asserts in its response to the petition for review, the claims of trial error were waived by Sample's failure to raise them on appeal; consequently, they are precluded. See Ariz. R. Crim. P. 32.2(a)(3). This includes Sample's claim that his due process rights were violated by the admission of certain evidence through the state's expert, a claim he contends is independent of the related claim of ineffective assistance of counsel. Therefore, although the trial court addressed on their merits the claims regarding the admission of evidence of Sample's pre-Miranda silence and refusal to give law enforcement officers the combination
to the safe, the summary denial of relief on these claims was correct because the claims are precluded under Rule 32.2(a)(3).
¶6 Nor are these claims of sufficient constitutional magnitude that they may not be waived implicitly and subject to preclusion under Rule 32.2(a)(3), as Sample seems to have suggested. The comment to Rule 32.2 states that although certain constitutional rights cannot be waived unless the waiver was knowing, voluntary and intelligent, "it is not the correct standard [of waiver] for other trial errors." Ariz. R. Crim. P. 32.2 cmt.; see also Stewart v. Smith, 202 Ariz. 446, ¶ 12, 46 P.3d 1067, 1071 (2002) (evaluating comment and preclusion under Rule 32.2(a)(3)). "Accordingly, some issues not raised at trial, on appeal, or in a previous collateral proceeding may be deemed waived without considering the defendant's personal knowledge, unless such knowledge is specifically required to waive the constitutional right involved," that is, if the "claim is of sufficient constitutional magnitude." Ariz. R. Crim. P. 32.2 cmt.
¶7 As this court stated in Swoopes, a defendant's "mere assertion" that his right to a fair trial was violated does not establish the claim is of such "magnitude" that a waiver may not be inferred by the defendant's failure to raise the issue on appeal or at trial; rather, the right implicated must be one that can only be waived by defendant personally. 216 Ariz. 390, ¶ 28, 166 P.3d at 954. As we explained further in Swoopes, "[a]n alleged violation of the general due process right of every defendant to a fair trial, without more, does not save [a] belated claim from preclusion." Id. ¶ 28. Sample has not established that his constitutional rights were violated and that the magnitude of the rights purportedly implicated is sufficient to avoid the preclusive effect of Rule 32.2.
¶8 Finally, to the extent Sample suggests in his reply to the state's response to the petition for review that the admission of the expert's testimony regarding his guilt amounted to fundamental error and that fundamental error is excepted from the rule of preclusion, he is mistaken. The law is to the contrary. Id. ¶ 42.
¶9 In his petition for post-conviction relief, Sample asserted summarily that appellate counsel had been ineffective in "failing to raise the obvious claims on direct appeal." At the end of a lengthy discussion about the alleged erroneously admitted expert testimony, he again stated summarily that "both trial and appellate counsel fell below the standard in failing to inform themselves on the law and the rules of evidence governing the admissibility and introduction of expert testimony." But aside from these cursory assertions, he did not develop a claim of ineffective assistance of appellate counsel further, utterly failing to support the claim under the appropriate standards, and never providing sufficient support for his blanket assertion that counsel's performance fell below prevailing professional norms. Nor does Sample reassert any claim of ineffective assistance of appellate counsel in his petition for review. Rather, with respect to the admission of evidence regarding his post-arrest silence, Sample merely asserts in his reply to the state's argument that the claims of trial error were precluded, "as the [petition for post-conviction relief] states, appellate counsel was ineffective for failing to raise this claim on direct appeal." And, to warrant an evidentiary hearing and avoid summary dismissal of a petition, a claim of ineffective assistance of counsel "must consist of more than conclusory assertions." State v. Donald, 198 Ariz. 406, ¶ 21, 10 P.3d 1193, 1201 (App. 2000).
¶10 The underlying claims of trial error appear to have been bootstrapped to an undeveloped claim of ineffective assistance of appellate counsel in order to avoid the preclusive effect of Rule 32.2(a)(3). And to the extent Sample develops this claim somewhat further in his reply than he did in the petition for post-conviction relief and does in the petition for review, we will not consider those arguments. See State v. Lopez, 223 Ariz. 238, ¶ 7, 221 P.3d 1052, 1054 (App. 2009) (trial court need not consider issues first raised in petitioner's reply); State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980) (we do not consider issues raised for first time on review). Moreover, the trial court mentioned the claim of ineffective assistance of appellate counsel in its ruling, clearly considering it, such as it was. Sample has provided no basis for finding the court abused its discretion on this ground.
¶11 We grant Sample's petition for review but deny relief for the reasons stated.