Opinion
No. 2 CA-CR 2019-0056-PR
12-06-2019
THE STATE OF ARIZONA, Respondent, v. JARRETT CHESYLE CARTER, Petitioner.
COUNSEL The Carrillo Law Firm PLLC, Tucson By Erin M. Carrillo 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Pima County
No. CR20103122001
The Honorable Paul E. Tang, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
The Carrillo Law Firm PLLC, Tucson
By Erin M. Carrillo
Counsel for Petitioner
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Vásquez concurred.
BREARCLIFFE, Judge:
¶1 Petitioner Jarrett Carter seeks review of the trial court's order dismissing 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 (App. 2007). Carter has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Carter was convicted of first-degree murder and two counts of attempted armed robbery. The trial court sentenced him to life without the possibility of release for twenty-five years for first-degree murder and to an 11.25-year prison term for each count of attempted armed robbery, with one of those terms to be served consecutive to his life sentence. This court vacated a criminal restitution order that had been entered, but otherwise affirmed the convictions and sentences. State v. Carter, No. 2 CA-CR 2012-0182 (Ariz. App. Aug. 20, 2013) (mem. decision).
¶3 Carter thereafter sought post-conviction relief, arguing in his petition that he had received ineffective assistance of trial counsel based on counsel's failure to (1) seek to sever Carter's trial from that of his codefendant, (2) object to a purportedly duplicitous indictment, (3) object to or request certain instructions, (4) request a mistrial for jury misconduct, (5) properly advise him as to his prior felony convictions, (6) obtain a jury finding as to "on probation" status, (7) argue "Arizona's felony murder statute is unconstitutional," and (8) object to the state's presenting alternate theories of the crime at sentencing. He also claimed appellate counsel was ineffective "for failing to raise a sufficiency of the evidence argument" or an argument as to the trial court's denial of his request for a use-of-force jury instruction. After an evidentiary hearing, the trial court dismissed the petition.
¶4 On review, Carter contends the trial court abused its discretion in rejecting his claim related to trial counsel's advice about his prior convictions, in failing to "collectively consider" prejudice resulting
from counsel's purportedly deficient performance, and in rejecting his claims of ineffective assistance of appellate counsel. Our review of the court's factual findings "is limited to a determination of whether those findings are clearly erroneous"; we "view the facts in the light most favorable to sustaining the lower court's ruling, and we must resolve all reasonable inferences against the defendant." State v. Sasak, 178 Ariz. 182, 186 (App. 1993). When "the trial court's ruling is based on substantial evidence, this court will affirm." Id. And, "[e]vidence is not insubstantial merely because testimony is conflicting or reasonable persons may draw different conclusions from the evidence." Id.; see also State v. Fritz, 157 Ariz. 139, 141 (App. 1988) (trial court sole arbiter of witness credibility in post-conviction proceeding). And, the trial court was "the sole arbit[er] of the credibility of witnesses" at the evidentiary hearing. Fritz, 157 Ariz. at 141; see also Sasak, 178 Ariz. at 186 ("It is the duty of the trial court to resolve any conflicts in the evidence . . . .").
¶5 In large part, Carter's arguments on review amount to a request that this court reweigh the evidence presented to the trial court; that we will not do. See Sasak, 178 Ariz. at 186. Furthermore, we cannot say the court abused its discretion in denying Carter's petition for post-conviction relief. The court clearly identified the claims he raised and resolved them correctly in a thorough, well-reasoned ruling, which we adopt. See State v. Whipple, 177 Ariz. 272, 274 (App. 1993) (when trial court has correctly ruled on issues raised "in a fashion that will allow any court in the future to understand the resolution[, n]o useful purpose would be served by this court rehashing the trial court's correct ruling in a written decision").
¶6 We write further, however, to address Carter's specific argument on review that the trial court abused its discretion in denying relief on his claim related to counsels' advice about his prior convictions because the following portion of the court's ruling was not supported by any evidence at the hearing; "[T]hey advised Defendant that if he took the stand, his convictions could be used to impeach him, though the State would be limited to a showing of the fact of each conviction in addition to place and date of each crime." Carter's attorneys did not independently remember their conversation with him on this point, and neither specifically discussed the state's limitation under Rule 609(a), Ariz. R. Evid. But one of his attorneys stated that his usual practice, which he followed with Carter, was to advise clients,
[U]nder ideal circumstances it's likely that the nature of his prior convictions wouldn't come
in. But . . . I could envision many, many less than ideal circumstances in which for one reason or another [he], not through any fault of his own but simply as a result of saying the wrong thing, . . . the door would be opened, and [the prosecutor] would be allowed to get into the nature of the priors.
We therefore cannot say the court abused its discretion in concluding counsel's advice had not been deficient.
¶7 We grant the petition for review, but deny relief.