Opinion
No. 2 CA-CR 2017-0054-PR
03-08-2017
THE STATE OF ARIZONA, Respondent, v. DARRICK MICHAEL LOFF, Petitioner.
COUNSEL Sheila Sullivan Polk, Yavapai County Attorney By Michael R. Morrison, Deputy County Attorney, Prescott Counsel for Respondent Darrick Michael Loff, Kingman In Propria Persona
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NOT FOR PUBLICATION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. 31.24. Petition for Review from the Superior Court in Yavapai County
No. V1300CR201180595
The Honorable Michael R. Bluff, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Sheila Sullivan Polk, Yavapai County Attorney
By Michael R. Morrison, Deputy County Attorney, Prescott
Counsel for Respondent Darrick Michael Loff, Kingman
In Propria Persona
MEMORANDUM DECISION
Judge Miller authored the decision of the Court, in which Presiding Judge Staring and Judge Espinosa concurred. MILLER, Judge:
¶1 Petitioner Darrick Loff seeks review of the trial court's order denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "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 find no such abuse here.
¶2 After a jury trial, Loff was convicted of offering to sell narcotic drugs, offering to sell marijuana, possession of narcotic drugs, and possession of marijuana. The trial court sentenced Loff to concurrent, presumptive prison terms, the longer of which is 15.75 years. On appeal, this court affirmed his convictions and sentences as corrected. State v. Loff, No. 1 CA-CR 13-0535 (Ariz. App. Apr. 29, 2014) (mem. decision).
¶3 Loff initiated a proceeding for post-conviction relief in 2013, which the trial court stayed pending the outcome on appeal. In April 2015, appointed counsel notified the court he was unable to find any claims to raise in a petition for post-conviction relief, and the court permitted Loff to file a pro-se petition. In that petition, he asserted claims pursuant to Rule 32.1(a), (b), (e), and (h), arguing: the state offered perjured testimony at trial; the warrantless search was illegal and the purported property owner did not have the authority to consent to the search; officers did not advise him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966); there was insufficient evidence to support his convictions; and, he received ineffective assistance of trial, appellate, and Rule 32 counsel.
¶4 In its detailed ruling denying that petition, the trial court found, with the exception of Loff's claims of ineffective assistance of counsel, his claims either lacked "any factual or legal basis" or were precluded because they "either could have been, or in fact were raised" on appeal. See Ariz. R. Crim. P. 32.2(a). In regard to the claims of ineffective assistance of counsel, the court concluded Loff had not only failed to provide any factual basis for his assertions, but he had not explained how counsel's conduct was deficient or how he was prejudiced thereby. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984) (claim of ineffective assistance requires showing both that counsel's performance fell below objectively reasonable professional standard and that deficient performance caused prejudice to defense); see also State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985).
¶5 On review, Loff generally reasserts the claims he raised below. He maintains his convictions were "based on perjured testimony, suppressed evidence, suppressed defensive testimony, ineffective[] assistance by . . . trial counsel, egregious prosecutorial misconduct, [and] illegal search and seizure." He further contends, "There is no justification for his illegal arrest, his illegal jail-time, his illegal conviction, his illegal incarceration or his illegal judgment and sentence." Because Loff has not addressed the basis for the trial court's ruling, much less explained how the court erred in rejecting his claims, he has failed to meet his burden of demonstrating the court abused its discretion in doing so. See Ariz. R. Crim. P. 32.9(c)(1)(iv) (petition for review shall contain reasons relief should be granted); cf. State v. Moody, 208 Ariz. 424, n.9, 94 P.3d 1119, 1147 n.9 (2004) ("[m]erely mentioning an argument is not enough"; failure to argue claim constitutes abandonment on appeal). Moreover, except for his claims of ineffective assistance of counsel, because Loff either raised or could have raised his claims on appeal, he is precluded from raising them now, as the court correctly found. See Ariz. R. Crim. P. 32.2(a).
¶6 And to the extent Loff presents new claims for the first time on review and attaches new exhibits not included with his petition below, we do not consider them. See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980); see also Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review should contain "issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review").
¶7 Regarding Loff's claims of ineffective assistance of counsel, it appears he refers only to the conduct of trial counsel on review. Because Loff has failed to explain how the trial court erred in rejecting this claim, he has failed to meet his burden of demonstrating the court abused its discretion by so ruling. See Ariz. R. Crim. P. 32.9(c)(1)(iv); cf. Moody, 208 Ariz. 424, n.9, 94 P.3d at 1147 n.9.
In addition, although not mentioned by the trial court, we note that as a non-pleading defendant, Loff was not entitled to the effective assistance of Rule 32 counsel; non-pleading defendants "have no constitutional right to counsel in post-conviction proceedings." State v. Escareno-Meraz, 232 Ariz. 586, ¶ 4, 307 P.3d 1013, 1014 (App. 2013). Moreover, Loff cannot challenge the effectiveness of the attorney who represents him in this proceeding. Cf. Osterkamp v. Browning, 226 Ariz. 485, ¶ 10, 250 P.3d 551, 554 (App. 2011) (counsel not expected to evaluate and assert own ineffectiveness).
¶8 Therefore, although we grant the petition for review, we deny relief.