Opinion
No. 2 CA-CR 2013-0307-PR
12-23-2013
THE STATE OF ARIZONA, Respondent, v. MARK NORIKI KASIC, Petitioner.
Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent Law Offices of Henry Jacobs, PLLC, Tucson By Henry Jacobs 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NOT FOR PUBLICATION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 Pima County
No. CR20084770001
The Honorable Kathleen Quigley, Judge
REVIEW GRANTED; RELIEF DENIED
counsel
Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent
Law Offices of Henry Jacobs, PLLC, Tucson
By Henry Jacobs
Counsel for Petitioner
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred. ECKERSTROM, Judge:
¶1 Petitioner Mark Kasic was convicted after a jury trial of thirty-two felonies in connection with six arsons and one attempted arson that he committed during a one-year period, and sentenced to a combination of concurrent and consecutive, presumptive terms that totaled slightly less than 140 years. Although we rejected his Eighth Amendment challenges to the sentences on appeal, we modified the two convictions for arson of property and remanded the case for resentencing on those counts. State v. Kasic, 228 Ariz. 228, ¶ 1, 265 P.3d 410, 411 (App. 2011). In this petition for review, Kasic challenges the trial court's order denying without an evidentiary hearing his petition for post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P., in which Kasic claimed trial counsel had been ineffective at sentencing.
¶2 In this post-conviction relief proceeding, Kasic initially claimed trial counsel had been ineffective by failing to request, pursuant to Rule 26.5, Ariz. R. Crim. P., a diagnostic and mental health evaluation before sentencing. It appears that, subsequently, he abandoned that argument after learning counsel had requested a psychological evaluation and after obtaining psychologist Paul Simpson's report of evaluations of Kasic in November 2008 and February 2009; Kasic then asserted in his reply and supplement — filed after he obtained the report — that counsel had been ineffective for failing to submit the psychological information she possessed as mitigation evidence for sentencing purposes. The trial court denied relief in a thorough, well-reasoned minute entry order in which it identified the claims raised and resolved them correctly and in a manner that has permitted this court to review its decision and the bases for the court's ruling. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). The court found, inter alia, that Kasic had failed to establish counsel's performance was deficient, quoting Strickland v. Washington, 466 U.S. 668, 691 (1984), and characterizing the decision not to present the mental health information as "virtually unchallengeable." Also relying on Strickland, the court concluded that, having found counsel's performance was not deficient, it did not need to address whether Kasic had been prejudiced by that performance.
In its minute entry order, the trial court stated Kasic had failed to raise a colorable claim on "the first prong of the Strickland test," adding it would not, therefore, "inquire as to whether or not the Petitioner was deficient." Considered in context, this was presumably a clerical error or a misstatement; the court apparently intended to state it would not consider the second part of the Strickland test, that is, whether Kasic had been prejudiced, not "deficient." See Strickland, 466 U.S. at 686 (holding that to establish successful claim of ineffective assistance of counsel, defendant must establish counsel's performance was deficient and defendant was thereby prejudiced).
¶3 Kasic contends on review that the trial court abused its discretion in denying his petition without the benefit of an evidentiary hearing regarding whether counsel had made a reasonable tactical decision not to present psychological evaluation materials that she had "at [her] disposal."
¶4 We will not disturb the trial court's ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). The record before the court contained sufficient evidence and other information to support its finding. The record shows, for example, counsel had presented substantial evidence in mitigation, including evidence of Kasic's difficult childhood, his father's illness, abandonment by his mother, and the fact that Kasic had been sexually abused. Additional evidence in mitigation may be found in counsel's sentencing memorandum and in the presentence report. The record supports the trial court's presumption that counsel had made a tactical decision not to introduce certain information she had regarding Kasic's mental health because it would not necessarily have been favorable to Kasic. The court noted, in that regard, that the psychological evaluation established "multiple high risk factors and the risk" that Kasic would reoffend.
¶5 We note that, in addition to the reasons the trial court gave for denying the petition without an evidentiary hearing, which are supported by the record and the applicable law, Kasic did not provide the court with sufficient information to raise a colorable claim that counsel's performance fell below prevailing professional norms. In his reply to the state's response to his petition, Kasic asserted he was
prepared to introduce the testimony of experienced trial counsel who is prepared to testify that, under the circumstances of this serial arson case, which by its nature tells us that the offender had a serious mental disorder, the prevailing professional norm would have been to request a mental health examination so as to provide insight to the court as to why these offenses were committed.But Kasic did not provide an affidavit from this witness or other documentation supporting his claim that trial counsel's performance had been deficient. See Ariz. R. Crim. P. 32.5 ("Affidavits, records, or other evidence currently available to the defendant supporting the allegations of the petition shall be attached to it."); see also State v. Febles, 210 Ariz. 589, ¶ 18, 115 P.3d 629, 635 (App. 2005) (to raise colorable claim and avoid summary dismissal of petition defendant must establish, inter alia, counsel's performance was objectively unreasonable based on applicable professional standards). He asserts repeatedly in his petition for review that counsel's decision not to use the material she had was unreasonable, but he provides no persuasive authority and no support in the way of an affidavit for that conclusory assertion.
¶6 In this regard, we do not find the cases Kasic cites and the mental health material he relies on, including Simpson's report and mental health literature, persuasive of his apparent contention that counsel's performance was per se deficient. Similarly, we find unpersuasive Kasic's suggestion on review that counsel's failure to present the psychological evaluation and related information was unreasonable as a matter of law. The trial court had this information before it; we cannot say it abused its discretion by reaching a contrary conclusion and finding Kasic did not rebut the strong presumption that counsel's performance fell within the wide range of conduct that is acceptable for these circumstances. See Strickland, 466 U.S. at 689.
¶7 We grant Kasic's petition for review. But, because Kasic has not sustained his burden of establishing the court abused its discretion by denying his petition without an evidentiary hearing, we deny relief.