Opinion
2 CA-CR 2022-0168-PR
02-24-2023
The State of Arizona, Respondent, v. Raul Otto Gonzalez, Petitioner.
Scott A. Martin, Tucson Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20163549001 The Honorable Scott McDonald, Judge
Scott A. Martin, Tucson Counsel for Petitioner
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Eckerstrom and Judge Sklar concurred.
MEMORANDUM DECISION
VÁSQUEZ, Chief Judge:
¶1Raul Gonzalez seeks review of the trial court's ruling 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 abused its discretion. See State v. Martinez, 226 Ariz. 464, ¶ 6 (App. 2011). For the reasons set forth below, we grant review, deny relief in part, grant relief in part, and remand for an evidentiary hearing.
Factual and Procedural Background
¶2After a jury trial, Gonzalez was convicted of three counts of molestation of a child twelve years of age or younger. The victim was Gonzalez's granddaughter, B.G., and his defense at trial was that his wife, I.G., had encouraged B.G. to fabricate the claims against him in retaliation for his infidelity. The trial court sentenced Gonzalez to concurrent twenty-year prison terms. This court affirmed his convictions and sentences on appeal. State v. Gonzalez, No. 2 CA-CR 2018-0201 (Ariz. App. Apr. 13, 2020) (mem. decision).
¶3Thereafter, Gonzalez sought post-conviction relief. Before Gonzalez filed his petition, the parties entered a stipulation, which the trial court accepted, that any claim of ineffective assistance of counsel "that is not supported by an affidavit by an expert" regarding "the 'standard of care' in the legal community as to the prevailing legal standard of performance . . . shall not be considered deficient for failing to include said affidavit."
¶4In May 2022, Gonzalez filed his Rule 32 petition, asserting he had received ineffective assistance of counsel. First, he argued trial counsel had been ineffective by "not objecting to the prosecutor's improper closing arguments on the grounds of 'vouching' and 'facts not in evidence.'" Second, he maintained that, when the prosecutor read into evidence excerpts from a confrontation call between Gonzalez and his wife "implying that Gonzalez had admitted . . . B.G.'s accusations were true," trial counsel had been ineffective by failing to introduce Gonzalez's denials of the accusations during the call under the rule of completeness in Rule 106, Ariz. R. Evid. He further argued that trial counsel had rendered deficient performance by failing to object or move for a mistrial when the prosecutor used those same excerpts to argue in closing that Gonzalez had admitted the accusations. Third, Gonzalez asserted that appellate counsel had been ineffective in failing to file a motion for reconsideration or petition for review based on a "blatant" error in this court's memorandum decision from his direct appeal.
Gonzalez also argued trial counsel had been ineffective in failing to prepare for the prosecutor's use of text messages sent by Gonzalez. However, Gonzalez does not reassert this claim on review. We therefore do not address it further. See Ariz. R. Crim. P. 32.16(c)(4) ("A party's failure to raise any issue that could be raised in the petition for review or cross-petition for review constitutes a waiver of appellate review of that issue.").
¶5In November 2022, the trial court summarily dismissed Gonzalez's petition. The court rejected each claim of ineffective assistance, finding neither deficient performance by counsel nor prejudice to Gonzalez. This petition for review followed.
Discussion
¶6On review, Gonzalez repeats his claims of ineffective assistance of trial and appellate counsel. He asks that we grant relief "as appropriate based on the specific arguments raised," including remanding the case for an evidentiary hearing. To obtain an evidentiary hearing, a defendant must establish a colorable claim for relief. State v. Donald, 198 Ariz. 406, ¶ 8 (App. 2000). And "[t]o make 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) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." Id.
Prosecutor's Closing Argument
¶7During closing arguments in Gonzalez's case, the following exchange occurred:
[Prosecutor]: Well, ladies and gentlemen, the defense in this case has no burden. That all rests with the State. But you can bet that if there was an expert witness out there that could describe the behavior that [B.G.] was exhibiting as her hiding something, they would have brought that person in here and you would have heard from them.
[Defense counsel]: Object to burden shifting.
The Court: Hang on a second. Counsel, come on up.
(Sidebar Conference.)
The Court: Your objection is burden shifting. And the response is?
[Prosecutor]: I led with the defense has no burden in this case, Judge. And there is specific case law that says that's appropriate where they challenge things. The Court: I'm going to overrule the objection, but I am going to ask you to tread very lightly here because there is a line that you are not permitted to cross. You haven't crossed it yet, but please be careful.
[Prosecutor]: I will, Judge. Thank you.
On appeal, Gonzalez argued that the prosecutor's statement "constituted prosecutorial misconduct because it involved burden shifting, reference to facts not in evidence, and vouching." Gonzalez, No. 2 CA-CR 2018-0201, ¶ 12. This court concluded the "argument was improper both because it suggested facts not in evidence and constituted improper vouching." Id. ¶ 16. However, we determined that Gonzalez had not met his burden of establishing prejudice under the fundamental-error standard. Id. ¶¶ 12, 18. We explained:
[T]he jury had the opportunity to directly assess the victim's demeanor on the witness stand, subject to comprehensive cross-examination. And, the trial court's instructions substantially mitigated any prejudice arising from the improper argument. Those instructions alerted the jurors that they alone judged witness credibility and that the lawyers' statements in summation were not evidence.... Moreover, other evidence corroborated B.G.'s testimony. That evidence included a DNA sample taken from B.G.'s panties, which did not exclude the defendant as the source, as well as the defendant's failure to squarely deny he had committed the offenses when accused by his wife.Id. ¶ 18.
¶8In his Rule 32 petition, Gonzalez argued trial counsel had been ineffective for not objecting to the prosecutor's closing argument based on "vouching" and "facts not in evidence." The trial court, however, determined that "Gonzalez's counsel did not fall below an objective standard of reasonableness." The court relied on State v. Valdez (Valdez II), 167 Ariz. 328 (1991), and pointed out that counsel had objected to the prosecutor's argument on the grounds of "burden shifting." The court explained, "Even if trial counsel was unaware of the proper objection, he nevertheless objected to the argument on a reasonable ground," which "was more proficient than trial counsel in Valdez, who did not object." The court further concluded that Gonzalez had failed to establish the second Strickland prong, noting that on appeal this court determined Gonzalez had failed to establish the prosecutor's improper argument affected the outcome of his case.
¶9Gonzalez now contends the trial court "misapplied" Valdez II. He maintains the court should have instead relied on State v. Valdez (Valdez I), 160 Ariz. 9 (1989).
¶10 Valdez I was a direct appeal from the defendant's conviction and sentence. 160 Ariz. at 10. Valdez argued that defense counsel's failure to object to the prosecutor's "improper and prejudicial comments" during closing arguments amounted to ineffective assistance. Id. at 10, 14. Our supreme court observed:
As a general matter, we recommend that when a defendant wishes to raise the question of ineffective assistance during the pendency of his appeal, he should file the proper petition under Rule 32 . . . in the trial court and seek an order from the appellate court suspending the appeal. The trial court should then hold an evidentiary hearing and make its ruling. Afterward, a defendant should seek to consolidate the post-conviction proceedings with the direct appeal.Id. at 15. The court did not address Valdez's claim of ineffective assistance but nonetheless reviewed the record for fundamental error, finding none. Id.
¶11 Valdez then sought post-conviction relief, raising the same claim of ineffective assistance of counsel. Valdez II, 167 Ariz. at 328-29. After an evidentiary hearing, the trial court denied relief. Id. at 329, 331. On review, our supreme court concluded that defense counsel was "unaware of . . . the proper objection to make" and that counsel's "failure to object was not a strategic decision." Id. at 331. The supreme court continued, "Even though defense counsel should have made the proper objection, this single mistake, in and by itself, does not bring the defendant's representation within the purview of the first prong of Strickland." Id. at 332. It thus affirmed the denial of post-conviction relief. Id.
¶12 Gonzalez contends his case "is functionally equivalent to Valdez I, not Valdez II," because the trial court denied his claim without holding an evidentiary hearing. He further maintains he is entitled to "an evidentiary hearing to determine trial counsel's reasons for failing to object to the prosecutor's improper arguments before evaluating whether Gonzalez has established the first Strickland prong." We disagree.
¶13Defendants are entitled to an evidentiary hearing only if they present a colorable claim. State v. D'Ambrosio, 156 Ariz. 71, 73 (1988); see also Ariz. R. Crim. P. 32.11(a) (court must summarily dismiss petition when no claim presents material issue of fact or law entitling defendant to relief). We do not read Valdez I as creating a different standard for a claim of ineffective assistance based on trial counsel's failure to object to a prosecutor's closing argument. The court's statement in Valdez I is more reasonably read as merely observing that an evidentiary hearing may be part of a post-conviction proceeding, in contrast to an appeal. Thus, to receive an evidentiary hearing, Gonzalez needed to show "both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced [him]." Bennett, 213 Ariz. 562, ¶ 21.
¶14"To establish deficient performance, a defendant must show that his counsel's assistance was not reasonable under prevailing professional norms, 'considering all the circumstances.'" State v. Kolmann, 239 Ariz. 157, ¶ 9 (2016) (quoting Hinton v. Alabama, 571 U.S. 263, 273 (2014)). "We presume counsel acted properly unless a defendant can show that 'counsel's decision was not a tactical one but, rather, revealed ineptitude, inexperience or lack of preparation.'" State v. Bigger, 251 Ariz. 402, ¶ 10 (2021) (quoting State v. Goswick, 142 Ariz. 582, 586 (1984)). Counsel is "not deficient merely for making errors." State v. Miller, 251 Ariz. 99, ¶ 10 (2021).
¶15In support of his argument that trial counsel was deficient for failing to object to the prosecutor's closing argument based on "facts not in evidence" or "vouching," Gonzalez relied entirely on our determination on appeal that the argument was improper. But counsel is not necessarily deficient for failing to object to an improper argument. See Valdez I, 160 Ariz. at 15 ("Nor is every failure to object to an improper question, exhibit, or argument worthy of being called ineffective assistance of counsel."). Although Gonzalez stated there was "no conceivable reason for counsel to not object on these grounds," he did not argue that counsel's failure to do so was the result of a lack of care, experience, or preparation. See Donald, 198 Ariz. 406, ¶ 17 (to receive evidentiary hearing, defendant must present more than conclusory assertion). We thus agree with the trial court that Gonzalez failed to show counsel's conduct fell below prevailing professional norms.
We disagree with Gonzalez that the trial court "read Valdez II to establish black-letter law that a trial counsel's failure to object due to lack of knowledge of the proper legal basis for said objection can never be performance below the prevailing professional norm." Nor do we read Valdez II to contain such a directive. See Valdez II, 167 Ariz. at 331-32; see also Bigger, 251 Ariz. 402, ¶ 10 (discussing standard for deficient performance).
¶16 Gonzalez also contends the trial court erred in concluding he had not established prejudice under the second Strickland prong. He maintains the court failed to analyze his argument that "had counsel properly objected, the[] objections would probably have been sustained, resulting in either a mistrial or curative instructions that probably would have affected the verdict." Again, we disagree.
¶17 As Gonzalez admits, the trial court identified his prejudice argument in its ruling. The court also concluded that Gonzalez had failed to establish prejudice by relying in large part on this court's prejudice analysis from Gonzalez's claim of prosecutorial misconduct on appeal. See Gonzalez, No. 2 CA-CR 2018-0201, ¶ 18. However, as the court recognized, the prejudice analyses are slightly different. On appeal, we were concerned with whether Gonzalez had established that, without the prosecutorial misconduct, "a reasonable jury could have plausibly and intelligently returned a different verdict." State v. Escalante, 245 Ariz. 135, ¶ 31 (2018). Here, by contrast, we are concerned with whether Gonzalez has established a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Bennett, 213 Ariz. 562, ¶ 25 (quoting Strickland, 466 U.S. at 694).
¶18 In any event, as the trial court seemed to suggest, the same considerations-including the trial evidence, the parties' theories of the case, the arguments of counsel, and the jury instructions - can be relevant under either prejudice analysis. See Escalante, 245 Ariz. 135, ¶ 31; Strickland, 466 U.S. at 695-96 . Based on our prior analysis, we cannot say that, even assuming trial counsel had been ineffective in failing to object to the prosecutor's closing argument based on "facts not in evidence" or "vouching," Gonzalez has established that the result of the proceeding would have been different. See Gonzalez, No. 2 CA-CR 2018-0201, ¶ 18. Gonzalez's summary assertion that the objections would have been sustained and a mistrial declared or curative instructions given, which "probably would have affected the verdict," is insufficient to meet his burden. See Donald, 198 Ariz. 406, ¶ 17. Of particular note, the court properly instructed the jurors that they must determine "the facts . . . in the case . . . only from the evidence produced in court" and "[w]hat the lawyers say [in their closing arguments] is not evidence." See State v. Payne, 233 Ariz. 484, ¶ 151 (2013) (we presume jury follows instructions).
¶19Gonzalez additionally argues that the trial court erred by rejecting his claim that had the "facts not in evidence" or "vouching" objections been preserved, he would have had a lesser standard to meet on appeal and "the outcome of the appeal probably would have been different." But even assuming the issue had been preserved for appeal, the result of Gonzalez's appeal would have been the same. Gonzalez has not identified any basis for us to conclude otherwise. The only difference would have been that the state had the burden "to prove beyond a reasonable doubt that the error did not contribute to or affect the verdict or sentence." State v. Henderson, 210 Ariz. 561, ¶ 18 (2005). The state's answering brief on appeal contained some of the same prejudice considerations as our memorandum decision, and we would have reached the same result. See State v. Teran, 253 Ariz. 165, ¶¶ 30-31 (App. 2022) (discussing state's burden under harmless-error standard); see also Henderson, 210 Ariz. 561, ¶ 39 (Hurwitz, J., concurring) (whether defendant or state bears burden of proof is "of little consequence"-court's analysis will be "substantively identical"). The trial court therefore did not abuse its discretion in rejecting this claim. See Martinez, 226 Ariz. 464, ¶ 6.
Confrontation Call
¶20Before Gonzalez's indictment, officers worked with his wife to confront him about B.G.'s accusations. During that confrontation call, Gonzalez stated, in part:
I wanna talk to [B.G.] but you don't let me. See I need to talk to her because she . . . listens to me. But you won't let me talk to her. And so she, since you won't let me talk to her, you gotta tell her, start saying you know whatever you think happened, happened. That's fine, you just need to forget about it. That's what you need to tell her. Don't worry. If that's what you feel. He's never gonna bother you again. He's never gonna come around you so just forget about it, you know. . . . [T]hat's the way I would go about it. 'Cause if you keep bringing it up, she's gonna tell the wrong person one day and . . . then they're gonna wanna investigate me.
¶21 At trial, Gonzalez testified, and, on cross-examination, he admitted making that statement. Then, during closing arguments, the prosecutor discussed that part of the confrontation call:
There was a second statement very similar to the first made by Gonzalez later in the confrontation call. Gonzalez also admitted during cross-examination to having made the second statement.
The words that he used were here's what you need [t]o do. You need to tell her to just forget about it. Whatever's happened happened. It's in the past. She just needs to move on. There were words in there about you can tell her that I won't come around her anymore. Those are the things that this defendant said within days, within the month of when all of this happened.
. . . But, again, folks, when you look at the words that he actually used, he's talking to [I.G.] And he never says [I.G.], stop telling her to make these things up. You know what you need to start doing. I want to talk to her, but you don't let me. Since you won't let me talk to her, you got to tell her, start saying, you know, whatever you think happened happened, that's fine. You just need to forget about it. That's what you need to tell her. Those are the words that he's using.
¶22 In his Rule 32 petition, Gonzalez argued that trial counsel had been ineffective for failing to introduce Gonzalez's denials of the accusations during the confrontation call. He further reasoned that trial counsel had rendered deficient performance by failing to object or move for a mistrial based on "facts not in evidence" when the prosecutor discussed the call during closing arguments.
¶23 Citing Goswick, 142 Ariz. at 586, the trial court concluded, "Gonzalez cannot show that the first Strickland prong is met because he has not alleged facts suggesting there was no reasonable basis for trial counsel's decision not to introduce into evidence other portions of the confrontation call." The court noted that counsel had tried to rehabilitate Gonzalez on redirect and "could have thought that the statements hurt Gonzalez as much or more than they help him." The court additionally determined that Gonzalez had failed to establish prejudice from counsel's failure to admit the entire call because "[t]he jury heard Gonzalez himself testify that he denied the accusations multiple times during the call." The court likewise concluded that Gonzalez had failed to establish either prong of Strickland as to his claim that trial counsel should have objected or moved for a mistrial in response to the prosecutor's closing argument, noting that the prosecutor's statements "were proper," the jury was instructed that the closing arguments are not evidence, and "the jurors heard ample evidence."
¶24 Gonzalez now contends the trial court erred by summarily dismissing his claim "based on suppositions about trial counsel's hypothetical motivations for his actions, without holding an evidentiary hearing to determine his actual motivations, if any." He also challenges the court's reliance on Goswick, arguing it is an "antiquated" case where the ineffective assistance of counsel claim was raised as part of the defendant's direct appeal, which required the court to rely on the "cold appellate record" and "to conjecture . . . as to the reasons for counsel's actions."
¶25 In its ruling, the trial court cited Goswick for the proposition that "disagreements as to trial strategy . . . will not support an ineffectiveness claim, as long as the challenged conduct could have had some reasoned basis." This proposition is still good law, see, e.g., State v. Smith, 244 Ariz. 482, ¶ 9 (App. 2018); State v. Denz, 232 Ariz. 441, ¶ 7 (App. 2013), despite the post-Goswick requirement that ineffectiveness claims be brought in Rule 32 proceedings, State v. Spreitz, 202 Ariz. 1, ¶ 9 (2002). However, based on the record before us, we cannot agree with the trial court's suggestion that trial counsel in this case made a strategic decision to not request that the entire confrontation call be admitted.
¶26 "Strategic decisions are 'conscious, reasonably informed decisions] made by an attorney with an eye to benefitting his client.'" Denz, 232 Ariz. 441, ¶ 11 (quoting Pavel v. Hollins, 261 F.3d 210, 218 (2d Cir. 2001)). They are entitled to a strong presumption of reasonableness. State v. Gerlaugh, 144 Ariz. 449, 455 (1985). "When evaluating the reasonableness of counsel's strategic decisions, the foundational inquiry is the rationale for the decision." Bigger, 251 Ariz. 402, ¶ 11.
¶27Here, we are unable to conceive of any strategically plausible basis for trial counsel to forgo moving to admit into evidence the entire confrontation call. Indeed, the prosecutor had narrowly focused the jury's attention on Gonzalez's statements that, out of that context, could be construed as a plain admission of guilt. We agree with Gonzalez that the entire call places him in a different light and shows that his statements were not as inculpatory as they seem in isolation.
In its response to Gonzalez's Rule 32 petition below, the state argued that trial counsel's "performance was objectively reasonable" because he had "attempted to rehabilitate [Gonzalez] as a witness and establish [his] denials of guilt." But counsel could have done those things in addition to admitting the entire confrontation call.
¶28Courts generally may infer why an attorney chose to pursue a certain course of action. See Bigger, 251 Ariz. 402, ¶¶ 13-14. But such inferences must be based on the record in the case and our case law generally. See, e.g., State v. Nash, 143 Ariz. 392, 397 (1985) (under first prong of Strickland, courts may "consult various sources" in determining reasonableness); State v. Workman, 123 Ariz. 501, 502-03 (App. 1979) (considering whether appellant's attorney made tactical decision not to use witness testimony based on "the facts in the record"). Otherwise, an evidentiary hearing may be necessary. See Massaro v. United States, 538 U.S. 500, 505 (2003) (in many cases, trial record "will not disclose the facts necessary" for Strickland analysis, such that court may need to "take testimony from witnesses for the defendant and the prosecution and from the counsel alleged to have rendered the deficient performance"); see Ariz. R. Crim. P. 32.13(a) (defendant entitled to evidentiary hearing to determine issues of material fact).
¶29Here, the trial court theorized that trial counsel "could have thought that the audio was damaging to Gonzalez's defense" and "could have thought that the statements hurt Gonzalez as much or more than they help him." But nothing in the record supports these inferences. See State v. Pandeli, 242 Ariz. 175, ¶ 4 (2017) (abuse of discretion occurs if "court makes an error of law or fails to adequately investigate the facts necessary to support its decision"). Indeed, the court's own language shows its uncertainty. Gonzalez has established a colorable claim that counsel's performance fell below objectively reasonable standards. See Bennett, 213 Ariz. 562, ¶ 21.
¶30 Despite showing deficient performance, Gonzalez must also show prejudice to receive an evidentiary hearing. See id. On that point, Gonzalez argues the trial court erred by finding he had not established prejudice from trial counsel's failure to admit the entire confrontation call and to object to the prosecutor's mischaracterization of his statements during closing arguments. He maintains, "[H]e was clearly prejudiced by the prosecutor's actions, which telegraphed to the jury that [he] had admitted guilt when he had not."
¶31 Arizona courts have long recognized that confessions and inculpatory statements by defendants are strong evidence of guilt. See State v. Amaya-Ruiz, 166 Ariz. 152, 182 (1990) (finding overwhelming evidence of guilt based principally on defendant's confession); State v. Leinweber, 121 Ariz. 435, 436 (1979) (describing notion that state's use of defendant's confession renders state's case "too strong to contest," resulting in defendant pleading guilty). We therefore impose safeguards before they can be admitted at trial. See State v. Jones ex rel. Cnty. of Maricopa, 198 Ariz. 18, ¶ 9(App. 2000); State v. Stone, 122 Ariz. 304, 311 (App. 1979).
¶32 Here, the limited portions of the confrontation call presented to the jury included Gonzalez asking his wife to tell B.G. "whatever you think happened, happened," "you just need to forget about it," and you need to "not talk about it" because talking about it will "make things worse." We agree with Gonzalez that these statements gave the jury the "impression that [he] had admitted to the accusations." Trial counsel's attempt to rehabilitate Gonzalez on redirect occurred after the jury had heard Gonzalez's damaging admissions during the state's case in chief. For this reason, that jury was primed to hear Gonzalez's later denials of guilt under oath with considerable skepticism. Indeed, counsel did not elicit from Gonzalez that he had denied guilt on the confrontation call until re-direct when it could be viewed not only as self-serving, but also without any evidence to support it. Notably, defense counsel never elicited for the jury the portions of the confrontation call that corroborated Gonzalez's avowal at that time. Thus, although Gonzalez testified that he had denied the accusations during the confrontation call, the jury was given no context to determine how much credence to give that claim.
¶33 Moreover, during closing arguments, the prosecutor repeated the inculpatory portion of Gonzalez's statements and stressed to the jury that "within the month of when all of this happened" he was telling his wife that B.G. "just needs to move on" because "[i]t's in the past." Here, Gonzalez maintained that his former wife had coached B.G. into making the accusations. And the state lacked any definitive physical evidence corroborating the crimes. In this context, the case turned mostly on the comparative credibility of B.G. and Gonzalez. Given the weight juries place on confessions and the effect the apparent confession had on that credibility question, we find a reasonable probability that, absent trial counsel's failure to admit his denials of culpability during the confrontation call, the result of the proceeding would have been different. See Bennett, 213 Ariz. 562, ¶ 25. Gonzalez has therefore made a colorable argument that his counsel's deficient performance prejudiced him. See id. ¶ 21.
Although the state presented evidence that Gonzalez could not be excluded as a donor for some DNA located on the victim's underwear, the victim's brother, who shared a room and laundry hamper with her, could also have been the donor.
As discussed above, we previously determined that the prosecutor had engaged in improper argument when he emphasized Gonzalez's failure to present certain expert testimony. In concluding that such error was not sufficiently prejudicial to grant a new trial, we placed weight on the confrontation call evidence and Gonzalez's failure to contemporaneously deny therein that he had molested the victim.
¶34In sum, Gonzalez has established a colorable claim of ineffective assistance of counsel. The trial court thus erred by summarily rejecting this claim. See Martinez, 226 Ariz. 464, ¶ 6. We grant relief and remand for an evidentiary hearing with respect to this issue.
Memorandum Decision
¶35As discussed above, in Gonzalez's appeal, this court considered whether he had been prejudiced by the prosecutor's closing argument insofar as it "suggested facts not in evidence and constituted improper vouching." Gonzalez, No. 2 CA-CR 2018-0201, ¶¶ 16-18. In doing so, we stated that other evidence corroborated B.G.'s testimony of the abuse, including "the defendant's failure to squarely deny he had committed the offenses when accused by his wife." Id. ¶ 18.
¶36In his Rule 32 petition, Gonzalez maintained this court's statement that he had failed to "squarely deny" the accusations was a "blatant" error "contradicted by the certified appellate record." He further argued that appellate counsel had rendered ineffective assistance by failing to file a motion for reconsideration or petition for review challenging the error.
¶37 In its ruling, the trial court first concluded that although this court's statement "was perhaps inartful, . . . it was not inaccurate." The court explained, "Although he denied the abuse, the statement Gonzalez admitted to making on cross examination contained no denials." The court next determined, "Even if appellate counsel's representation was deficient, Gonzalez cannot show that the result of his appeal would have been different" because the statement that Gonzalez did not squarely deny the allegations was only "one of many reasons why" this court found no prejudice.
¶38 Gonzalez now challenges the trial court's statement that this court's memorandum decision was "perhaps inartful, but it was not inaccurate." He also asks this court to revisit the prejudice determination, reasoning that this court "is in the best position to determine whether its decision would have been affected had its error been pointed out before the [m]andate issued."
¶39 Preliminarily, we agree with the trial court that the statement in our previous memorandum decision was "inartful" insofar as it is not clear whether we were referring only to Gonzalez's "failure to squarely deny" the accusations during the part of the confrontation call read into evidence. See Gonzalez, No. 2 CA-CR 2018-0201, ¶ 18. But perhaps more importantly, appellate counsel's own affidavit defeats any claim of ineffective assistance on his failure to challenge that statement. In his affidavit attached to Gonzalez's Rule 32 petition, counsel stated:
When I read this factual finding in the Memorandum Decision I knew it was not true, because I had listened to the audio recording of the confrontation call and had heard . . . Gonzalez repeatedly and vociferously deny the allegations to his wife. But, the recording of the confrontation call had not been admitted into evidence, and was therefore not part of the appellate record. Accordingly, I felt this was an issue that could only be explored in a post-appeal Rule 32 action.
Counsel cannot be deemed ineffective for making a conscious decision that a particular issue needed to be raised in a different context. Denz, 232 Ariz. 441, ¶ 11 ("Strategic decisions are 'conscious, reasonably informed decisions] made by an attorney with an eye to benefitting his client.'" (quoting Pavel v. Hollins, 261 F.3d 210, 218 (2d Cir. 2001))).
¶40 Although appellate counsel stated he was unaware Gonzalez had testified during redirect that he denied the accusations by B.G. during the confrontation call, Gonzalez has not met his burden of showing that detail being included in his opening brief on appeal would have changed the result of the proceeding. As the trial court pointed out, this court's prejudice analysis took into consideration several factors. Even eliminating the "failure to squarely deny" statement from our previous memorandum decision, we would still conclude Gonzalez failed to meet "his burden of demonstrating that the error affected the outcome of his case." Gonzalez, No. 2 CA-CR 2018-0201, ¶ 18. The trial court therefore did not abuse its discretion in rejecting this claim. See Martinez, 226 Ariz. 464, ¶ 6.
Disposition
¶41 For the foregoing reasons, we grant review and deny relief in part. However, we grant relief on Gonzalez's claim of ineffective assistance of counsel as to the confrontation call and remand for an evidentiary hearing on that issue.