Opinion
No. 2 CA-CR 2014-0338-PR
11-18-2014
THE STATE OF ARIZONA, Respondent, v. WESLEY GENE DURAN, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Karen Kemper, Deputy County Attorney, Phoenix Counsel for Respondent Wesley G. Duran, Florence 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Maricopa County
No. CR2009006250001DT
The Honorable Glenn M. Davis, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL William G. Montgomery, Maricopa County Attorney
By Karen Kemper, Deputy County Attorney, Phoenix
Counsel for Respondent
Wesley G. Duran, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 Petitioner Wesley Duran seeks review of the trial court's order summarily denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We find no such abuse here.
¶2 Duran was convicted after a jury trial of seven counts of sexual conduct with a minor, five counts of molestation of a child, and one count each of public sexual indecency to a minor, abuse of a victim under fifteen years of age, unlawful imprisonment, and furnishing harmful items to minors. The trial court sentenced Duran to fifty-seven years in prison to be followed by five, consecutive life sentences. We affirmed his convictions on appeal, but remanded for resentencing on two counts. State v. Duran, No. 1 CA-CR 10-0167, ¶ 29 (memorandum decision filed Feb. 14, 2012). Duran was resentenced to serve four, consecutive life sentences, to be followed by seventy-seven years in prison.
¶3 Duran initiated a Rule 32 proceeding in 2012, and after appointed counsel notified the court she was "unable to find any colorable claims for relief to raise" in a Rule 32 petition, Duran filed a supplemental petition in January 2013. In its ruling denying that petition, the trial court found that, with the exception of Duran's claims of ineffective assistance of counsel, his claims were precluded because they were either raised or could have been raised on appeal. See Ariz. R. Crim. P. 32.2(a). In regard to the claims of ineffective assistance of trial and appellate counsel, the court concluded Duran had failed to present a material issue of fact or law suggesting that either counsel's performance was deficient or that he was prejudiced thereby. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984) (colorable 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).
¶4 On review, Duran "rests on the merits" of his petition below and asks us to review "'de novo' for fundamental error" his claims based on sentencing error, the amendment of the indictment, the violation of the attorney-client privilege, his right to compel witnesses at trial, and the constitutionality of a "confrontation call" between Duran and the victim. Because Duran has failed to explain how the trial court erred in rejecting these 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, because Duran raised three of these claims on appeal and could have raised the other two on appeal, he is precluded from raising them now, as the court correctly found. See Ariz. R. Crim. P. 32.2(a).
The claim before us is not based specifically on the two sentences that were the subject of the resentencing hearing.
¶5 Relying on a mistaken interpretation of Rule 32.2(a), Duran additionally argues preclusion does not apply to him. He maintains that because he does not have a pending motion or appeal, he is "at liberty to raise any colorable claim not previously put forth for a decision," and he is entitled "to raise issues overlooked under Rule 31[, Ariz. R. Crim. P.]." However, the clear language of Rule 32.2(a) simply does not support Duran's interpretation of that rule and, therefore, the trial court properly found his claims precluded.
¶6 Regarding Duran's claim of ineffective assistance of trial counsel, he again asserts, without more, that he "rests on the merits of [his supplemental] petition and moves this court to review such colorable claim [] 'de novo' for fundamental error." And again, because Duran 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. Duran also argues appellate counsel was ineffective for failing to "investigate and raise issues of a claim of ineffective assistance of [trial] counsel," asserting by way of example that the court gave erroneous jury instructions and did not share with the jury decisions based on "side bar" discussions with counsel at trial. Because Duran has failed to establish how appellate counsel's performance was deficient or that he was prejudiced thereby, see Strickland, 466 U.S. at 687-88, or to explain why the court should have provided relief on this ground, he has not met his burden on review, see Rule 32.9(c)(1)(iv).
Although Duran stated "appellate" counsel, it appears he meant to say "trial" counsel.
¶7 Therefore, we grant the petition for review, but deny relief.