Opinion
No. 2 CA-CR 2014-0172-PR
09-08-2014
THE STATE OF ARIZONA, Respondent, v. JOSEPH LAWRENCE DIXON, Petitioner.
COUNSEL Robert J. Zohlmann, Tombstone 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 NOT FOR PUBLICATION See Ariz.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 Cochise County
No. CR201100293
The Honorable James L. Conlogue, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Robert J. Zohlmann, Tombstone
Counsel for Petitioner
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 Joseph Dixon 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). Dixon has not met his burden of demonstrating such abuse here.
¶2 After a jury trial, Dixon was convicted of twenty-four counts of sexual exploitation of a minor and sentenced to consecutive, ten-year prison terms for each count. We affirmed his convictions and sentences on appeal. State v. Dixon, 231 Ariz. 319, 294 P.3d 157 (App. 2013).
¶3 Dixon then sought post-conviction relief. He argued that his "rights to due process of law, his Fourth Amendment right to be free of unreasonable searches and seizures and his Sixth Amendment right to a fair trial and the effective assistance of counsel" had been violated. Specifically, he asserted: (1) the state failed to timely disclose the search warrant; (2) trial counsel did not "adequately investigate" the case or "timely request, secure and analyze" the warrant; (3) the warrant "clearly did not authorize any searches of Mr. Dixon's computer"; (4) trial counsel did not file a motion to suppress "all evidence which was discovered during" a purportedly warrantless search of his computer; (5) trial counsel agreed to "substantive changes" in the indictment instead of objecting to the changes, thereby "depriv[ing] [him] of his absolute defense to the original . . . indictment."
¶4 The trial court dismissed Dixon's petition. It concluded the search warrant was not defective and allowed the search of his computer and, thus, "[n]one of the actions of the prosecutor or trial defense counsel regarding the warrant prejudiced [Dixon] in any way." And, the court concluded, Dixon's challenge to the amended indictment was precluded because it could have been raised on appeal. The court further observed that Dixon had not shown any prejudice resulting from the amendment and, thus, had not shown that counsel had been ineffective.
¶5 On review, Dixon first asserts he did not challenge the validity of the warrant, but instead claimed in his petition below that the search of his computer was outside the scope of that warrant. He argues the trial court failed to address that argument. The trial court's conclusion that the warrant permitted the search of his computer, however, necessarily rejected Dixon's argument that the search was outside the scope of the warrant. And, his argument is unavailing in any event.
¶6 First, to the extent Dixon claims the search of his computer violated his Fourth Amendment or due process rights, that claim could have been raised on appeal and therefore is precluded. See Ariz. R. Crim. P. 32.2(a)(3); State v. Cañez, 202 Ariz. 133, ¶ 70, 42 P.3d 564, 586 (2002) ("[W]e will review for fundamental error even absent a pretrial motion to suppress."). We therefore evaluate Dixon's arguments related to the warrant only in the context of his claim of ineffective assistance of counsel—that is, that counsel was ineffective for failing to file a motion to suppress based on purported defects in the search of Dixon's computer.
¶7 "To state a colorable claim of ineffective assistance of counsel," Dixon was required to "show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced [him]." State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006), citing Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate resulting prejudice, Dixon had to show a reasonable probability that the outcome would have been different absent counsel's ineffectiveness. See State v. Nash, 143 Ariz. 392, 398, 694 P.2d 222, 228 (1985).
¶8 Dixon argues that the warrant did not permit law enforcement officers to search his computer because the warrant only authorized the computer's seizure. He notes that the warrant refers to "Attachment 'A'" as the "property or things" concealed at his address and states that the officer is commanded to "search . . . the herein above described premises for the herein above described property or things and . . . to retain such in your custody subject to A.R.S. 13-3920." Although Attachment A lists "[a]ny computer," Dixon points out that Attachment A is titled "Item to be seized." Thus, he concludes, the warrant authorized only the seizure of the property listed in Attachment A, not its search.
¶9 But Dixon ignores the fact that Attachment A also provides for "permission to search and seize contraband images from any items found during the search" and that the warrant incorporated by reference the supporting affidavit; the affidavit specified that the search was for "property . . . used as the means of committing" sexual exploitation of a minor pursuant to A.R.S. § 13-3553(A)(2)—which prohibits "[d]istributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing or exchanging any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct." A warrant may incorporate information by attachment. State v. Woratzeck, 130 Ariz. 499, 501, 637 P.2d 301, 303 (App. 1981). And "Arizona courts have reasoned that warrants are to be given a common sense reading, [so] that they will not be defeated by a hypertechnical interpretation." State v. Rodgers, 134 Ariz. 296, 300, 655 P.2d 1348, 1352 (App. 1982). The clear intention of the warrant, based on a common-sense reading, was to permit the search and seizure of child pornography kept on Dixon's computer or other electronic media.
¶10 Moreover, "[i]f it is reasonable to believe that a computer contains items enumerated in the warrant, officers may search it." United States v. Giberson, 527 F.3d 882, 888 (9th Cir. 2008); see also State v. Lavers, 168 Ariz. 376, 385-86, 814 P.2d 333, 342-43 (1991) (reasonable for officers to conclude tape recording was "'container that may conceal the object of a search authorized by a warrant'"), quoting United States v. Ross, 456 U.S. 798, 823 (1982). In short, Dixon has not identified a basis upon which trial counsel could have challenged successfully the search of his computer. Thus, he did not present a colorable claim that counsel was ineffective in failing to do so. See Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d at 68.
Dixon argued below that the warrant was insufficiently specific. But he does not assert on review that the trial court erred in implicitly rejecting this argument and therefore has waived it. See Ariz. R. Crim. P. 32.9(c)(1) ("Failure to raise any issue that could be raised in the petition . . . for review shall constitute waiver of appellate review of that issue."). Moreover, his argument below was based entirely on out-of-state authority and he has not supported a claim that trial counsel was ineffective in failing to raise an argument not grounded in Arizona authority. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (insufficient argument waives claim on review).
¶11 Dixon next argues the trial court erred in concluding that his claim regarding the amendment to the indictment was precluded because it could have been raised on appeal. Citing a civil case, Dixon contends, "It is well established that an issue not preserved in the trial court cannot be raised on appeal." But, in a criminal case, a claim not raised below is typically reviewable on appeal for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005); see also State v. Fimbres, 222 Ariz. 293, ¶ 33, 213 P.3d 1020, 1029 (App. 2009) (reviewing for fundamental error amendment of indictment).
Trantor v. Fredrikson, 179 Ariz. 299, 878 P.2d 657 (1994).
¶12 Although Dixon notes that he raised a claim of ineffective assistance of counsel, he does not question the trial court's further conclusion that he was not prejudiced by counsel's decision to not object to the amendment. He therefore has waived any challenge to that finding, see Ariz. R. Crim. P. 32.9(c)(1), and his claim of ineffective assistance fails. See Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d at 68.
¶13 For the reasons stated, although we grant review, we deny relief.