Opinion
No. 1 CA-CR 13-0513 PRPC
02-26-2015
STATE OF ARIZONA, Respondent, v. GARY WALFORD, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Robert E. Prather Counsel for Respondent Gary Walford, Phoenix Petitioner
NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Petition for Review from the Superior Court in Maricopa County
No. CR2009-121990-002
The Honorable Barbara L. Spencer, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Robert E. Prather
Counsel for Respondent
Gary Walford, Phoenix
Petitioner
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Judge Lawrence F. Winthrop and Chief Judge Diane M. Johnsen joined.
SWANN, Judge:
¶1 Gary Walford petitions for review of the trial court's summary dismissal of his petition for post-conviction relief, filed pursuant to Ariz. R. Crim. P. 32. We have considered his petition and, for the reasons stated, grant review but deny relief.
¶2 Walford was charged with misconduct involving weapons and possession of marijuana after a highway patrol officer discovered marijuana and a handgun inside the car Walford was driving. A jury found Walford guilty of possession of marijuana and not guilty of misconduct involving weapons. Based on Walford's prior felony convictions, the trial court sentenced him as a repetitive offender to a presumptive 3.75-year term of imprisonment. This court affirmed the conviction and sentence on direct appeal. State v. Walford, 1 CA-CR 10-0664 (Ariz. App. Oct. 13, 2011) (mem. decision).
¶3 Walford commenced a post-conviction relief proceeding and his counsel filed a notice stating he could not find a colorable claim for post-conviction relief. Then Walford filed a pro se petition for post-conviction relief, alleging claims of insufficient evidence and ineffective assistance of trial counsel. The trial court summarily dismissed the petition, finding that the claim of insufficient evidence was precluded and that Walford failed to state a colorable claim of ineffective assistance of counsel. Walford filed a timely petition for review.
¶4 We review the summary dismissal of a petition for post-conviction relief for abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17, 146 P.3d 63, 67 (2006). And we may uphold the trial court's ruling on any basis supported by the record. State v. Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 809 (1987).
I. Insufficient Evidence
¶5 The trial court did not err when it found that Walford's claim of insufficient evidence was precluded. A defendant is precluded from
obtaining collateral relief on any ground that was or could have been raised on direct appeal. Ariz. R. Crim. P. 32.2(a). Because the claim of insufficient evidence could have been raised on direct appeal, the trial court correctly determined this claim was precluded. State v. Shrum, 220 Ariz. 115, 118, ¶ 12, 203 P.3d 1175, 1178 (2009).
¶6 Walford argues in his petition for review that his claim of insufficient evidence should not have been precluded because he requested that his appellate attorney raise the claim on appeal and his counsel was ineffective in failing to do so. Walford did not raise this claim of ineffective assistance of appellate counsel below. A petition for review may not present issues not first presented to the trial court. 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).
II. Ineffective Assistance of Counsel
¶7 The trial court did not err when it found that Walford failed to state a colorable claim of ineffective assistance of trial counsel. To state a colorable claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below objectively reasonable standards and that the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish 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." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. If a defendant fails to make a sufficient showing on either prong of the Strickland test, the court need not determine whether the other prong was satisfied. State v. Salazar, 146 Ariz. 540, 541, 707 P.2d 944, 945 (1985).
¶8 Walford first argues his trial counsel was ineffective because he failed to arrange for Walford's return to court to accept a plea offer. However, at no time in either his petition for post-conviction relief or the supporting affidavit does Walford state that he informed his counsel that he had decided to accept the plea offer before the deal expired. Absent such a communication, no basis exists for finding that his trial counsel was deficient in failing to undertake arrangements to finalize a plea agreement. See Strickland, 466 U.S. at 691 (noting reasonableness of counsel's actions may be determined by the information supplied to counsel by the defendant).
¶9 Walford next argues that his counsel was ineffective because he failed to have the baggies of marijuana checked for fingerprints.
However, even if Walford's fingerprints were not found on the baggies of marijuana, that fact would not have any tendency to exonerate him. See State v. Tucker, 157 Ariz. 433, 443, 759 P.2d 579, 589 (1988) (holding absence of fingerprints on gun would not have excluded defendant from having handled the gun and committing the crime); State v. Geotis, 187 Ariz. 521, 525, 930 P.2d 1324, 1328 (App. 1996) (holding absence of fingerprints on currency would not have tended to prove defendant's innocence). Accordingly, the trial court could reasonably find that Walford did not show either deficient performance or prejudice with respect to this claim.
¶10 Finally, Walford argues that his trial counsel was ineffective because he failed to investigate the traffic stop and file a motion to suppress based on an allegedly unlawful stop. A colorable claim warranting an evidentiary hearing is "one that, if the allegations are true, might have changed the outcome." State v. Runningeagle, 176 Ariz. 59, 63, 859 P.2d 169, 173 (1993). As the trial court noted in dismissing the claim, the highway patrol officer testified at trial that he stopped Walford due to his speeding and driving at night on the freeway with no lights; the court concluded that this testimony would support denial of any motion to suppress based on a claim of illegal stop. Moreover, even accepting the facts as stated by Walford in his petition for post-conviction relief and affidavit -- that his car was having engine problems and therefore could not go faster than 20 to 25 miles-per-hour -- the traffic stop would still have been reasonable and lawful because he was driving at such a slow speed on the freeway. See A.R.S. § 28-701(E) (prohibiting the driving of a motor vehicle at a speed that is less than the speed that is reasonable and prudent). The failure to file what would have been a futile motion to suppress does not constitute ineffective assistance of counsel. See State v. Noleen, 142 Ariz. 101, 106, 688 P.2d 993, 998 (1984) (failure to challenge voluntariness of defendant's statements was not ineffective assistance because challenge "would have been futile").
¶11 On this record, the trial court did not abuse its discretion when it summarily dismissed Walford's petition for post-conviction relief. Therefore, we deny relief.