Opinion
No. 2 CA-CR 2018-0005-PR
05-25-2018
THE STATE OF ARIZONA, Petitioner, v. DEBRA ELIZABETH STEPHENS, Respondent.
COUNSEL Tony Rogers, La Paz County Attorney By Karen L. Hobbs, Chief Deputy County Attorney, Parker Counsel for Petitioner Jessica L. Quickle, Parker Counsel for Respondent
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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in La Paz County
No. S1500CR201400129
The Honorable Thomas L. Wing, Judge
REVIEW GRANTED; RELIEF GRANTED IN PART
COUNSEL Tony Rogers, La Paz County Attorney
By Karen L. Hobbs, Chief Deputy County Attorney, Parker
Counsel for Petitioner Jessica L. Quickle, Parker
Counsel for Respondent
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 In this petition for review pursuant to Rule 32.9(c), Ariz. R. Crim. P., the State of Arizona challenges the trial court's June 2017 order granting Debra Stephens post-conviction relief from convictions of possession of a dangerous drug for sale and possession of drug paraphernalia, based on ineffective assistance of trial counsel. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). For the reasons stated below, we grant the petition for review and grant relief in part, remanding this matter to the trial court for clarification and reconsideration of its prior ruling.
¶2 Stephens was convicted of the offenses after a jury trial and was sentenced to concurrent prison terms of ten years and one year. This court affirmed the convictions and sentences on appeal. See State v. Stephens, No. 1 CA-CR 15-0200 (Ariz. App. May 31, 2016) (mem. decision). In that decision, this court set forth the facts based on evidence presented that we viewed in the light most favorable to sustaining the verdicts. Id. ¶¶ 2-8. Briefly, a La Paz County sheriff's deputy went to a swap meet to check on the welfare of a child whose mother reportedly drove a silver van. Id. ¶ 3. The deputy approached Stephens as she sat in the driver's seat of a parked silver van near the swap meet with two passengers, observing her shove a black purse or bag between her seat and the driver's side door. Id.
¶3 After the deputy asked Stephens about the child's mother, he asked her if there were any drugs in the van and when she said no, he asked if he could search the bag he had seen. Id. ¶ 4. Stephens refused, he persisted, and she ultimately held the open bag and told the deputy to look inside. Id. He saw an unlabeled prescription pill bottle that appeared to contain a wrapped object, insisting that she let him look inside despite Stephens's claims that it was empty. Id. ¶¶ 4-5. After she tried to keep the bottle away from the deputy, he "opened the door to the van, grabbed Stephens' arm with one hand, grabbed the bottle with the other and pulled Stephens out of the van. As he did so, the deputy could see the bottle contained plastic baggies with a crystalline substance." Id. ¶ 5. He placed Stephens in handcuffs, opened the bottle, which contained what was later determined to be methamphetamine and oxycodone, and found a glass pipe, more plastic baggies, two digital scales, and pills in the bag. Id. ¶¶ 6-7.
In connection with one of the issues Stephens raised on appeal—whether error occurred when the trial court admitted evidence that she had invoked her constitutional rights—this court noted in its memorandum decision that the deputy twice testified Stephens had told him she had a constitutional right to decline to consent to the search of her bag and that he had agreed. Id. ¶ 12. We also noted his testimony that Stephens had told him he was violating her rights when he searched her bag. Id.
¶4 On appeal, Stephens argued the trial court erred by failing to suppress the evidence seized as a result of an unlawful search. Id. ¶ 9. This court refused to address the issue, finding any error was invited or waived because Stephens not only failed to file a motion to suppress, she acquiesced to the admission of the evidence, as long as the deputy's trial testimony would not conflict with his pretrial interview. Id. ¶¶ 10-11.
¶5 In her petition for post-conviction relief, Stephens argued trial counsel had been ineffective under the Strickland test for failing to file a motion to suppress the evidence. She argued that the warrantless, nonconsensual search of her purse and its contents was unconstitutional, and that she would testify at an evidentiary hearing that she had told trial counsel to file a motion to suppress, but he had responded that, because "their defense at trial was going to be 'mere presence,' it didn't matter." Stephens argued that this was unreasonable and, citing State v. Fillmore, 187 Ariz. 174, 181 (App. 1996), asserted that the failure to move to suppress the evidence was deficient performance. She maintained a successful motion would have left the state with no evidence to proceed to trial.
Strickland v. Washington, 466 U.S. 668 (1984). --------
¶6 The parties agreed at a hearing that there was no need for an evidentiary hearing because the facts resulting in Stephens's arrest were established by the deputy's trial testimony and were undisputed. They agreed to submit the petition to the court on the record and oral argument, which was held later that day. During the argument, Stephens cited our supreme court's recent decision in State v. Primous, 242 Ariz. 221 (2017), as relevant to the unconstitutionality of the search, but clarified that case was not necessary for the court's determination of the issue. The trial court then granted the state's request to submit supplemental briefs on the implications of Primous.
¶7 The trial court's June 2017 order granting the petition and vacating Stephens's convictions and sentences is unclear, and in places it is difficult to ascertain the court's meaning. The court ruled that
[t]he issue framed by the Rule 32 . . . petition does not warrant the court's finding whether a defense motion to suppress the evidence discussed on the constitutionality of police officer's actions leading to discovery and seizure of the physical evidence in the vehicle at the time of the defendant's arrest.The court further found that "[t]he issue for determination as framed by the Rule 32 . . . petition does not require nor warrant the court to rule on whether a motion to suppress evidence in this case would have been granted, if filed." The court added that "[t]he central and deciding issue . . . is whether the constitutional right to effective assistance defendant's of this trial counsel's decision or failure to decide whether to file and adequately present evidence and arguments or a pretrial motion to suppress." Denying the state's request that the court not consider Primous because it was not decided until after the trial in this case, the court found the case "further amplif[ied] the presence of those factors bearing on [whether] the defense counsel's representation of the defendant met and satisfied the standard for effective representation of the defendant." The court then found that
[t]he evidence presented and argued by counsel for both parties, through their Rule 32 pleadings, sufficiently establish a clear and readily available basis for defendant's trial counsel to have filed and reasonably pursued a pretrial motion to suppress. There was no evidence presented in the Rule 32 proceeding which would support the defense counsel's decision or lack of decision leading to failure to file a motion to suppress. The reasoning on why
such motion was [not] filed is left to speculat[ion].
¶8 In its petition for review, the state contends the trial court abused its discretion by (1) granting relief without finding trial counsel's performance fell below an objectively reasonable professional standard and that Stephens was thereby prejudiced as required under Strickland v. Washington, 466 U.S. 668 (1984), and its progeny; (2) employed an incorrect test for ineffective assistance by granting relief based on the ease with which trial counsel could have filed a motion to suppress; (3) applying an incorrect standard by granting relief without deciding whether a motion to suppress would have had a reasonable probability of changing the outcome of the case; (4) evaluating the constitutionality of the search of the bag and its contents and, consequently, the reasonableness of counsel's performance, under Primous; and (5) impermissibly shifting the burden to the state to provide tactical reasons trial counsel did not file a motion to suppress.
¶9 "To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006); see also Strickland, 466 U.S. at 687. To demonstrate the requisite prejudice, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. To show prejudice from counsel's failure to file a motion to suppress, Stephens was required to show and the trial court was required to find there was a reasonable likelihood that the motion would have succeeded. See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); State v. Kasten, 170 Ariz. 224, 228-29 (App. 1991). Additionally, Stephens was required to show a successful ruling on the motion would have changed the result at trial; here the grant of a motion to suppress would have been dispositive. See State v. Berryman, 178 Ariz. 617, 622 n.3 (App. 1994).
¶10 We reject the state's contention that the trial court applied an incorrect standard in determining whether counsel's performance was deficient under Strickland. Notwithstanding the lack of clarity, the court appears to have determined that, in failing to file a motion to suppress, counsel's performance was deficient. That finding is supported by the record as developed at trial, the existing case law regarding the lawfulness of the search, and the supreme court's decision in Fillmore, on which Stephens relied in her petition and at oral argument. In Fillmore, the supreme court stated: A lawyer's performance is professionally deficient when he or she "neglects to move to suppress evidence obtained through a questionably legal search," unless there is "some compelling tactical reason" for not doing so. 187 Ariz. at 181, quoting State v. Watson, 134 Ariz. 1, 4-5 (1982). The trial court's comments here imply the court found the search was "questionably legal," and that from the record before the court, there did not appear to be a tactical reason for not filing a motion to suppress. Nor does the record provide a tactical reason for counsel's acquiescing to the admission of the evidence under the facts of this case, or for waiving any challenge by not filing a motion to suppress. Rather, given the applicable case law that existed at the time counsel represented Stephens and the factual record established at trial, the court did not abuse its discretion in finding the first part of the Strickland test satisfied.
¶11 We do find the trial court's ruling less clear as to the prejudice portion of the Strickland test. The court appears to have rejected the notion that it was required to decide whether the motion would have been granted. But it is unclear if it considered whether there is a reasonable likelihood that the motion would have succeeded. See Kimmelman, 477 U.S. at 375; Kasten, 170 Ariz. at 228-29. We therefore grant the state's petition in part and remand this matter to the trial court, which is directed to clarify its ruling in this regard and, if necessary, make the requisite determination, which is the prejudice portion of the Strickland test in this context.
¶12 The petition for review is granted in part, and this matter is remanded to the trial court for further proceedings consistent with this decision.