Opinion
No. 2 CA-CR 2018-0085-PR
06-27-2018
THE STATE OF ARIZONA, Respondent, v. JAMES EDWARD FAHERTY, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Catherine Leisch, Deputy County Attorney, Phoenix Counsel for Respondent James Faherty, Tucson 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NOT FOR PUBLICATION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. 31.19(e). Petition for Review from the Superior Court in Maricopa County
No. CR2016122945001DT
The Honorable Mark H. Brain, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL William G. Montgomery, Maricopa County Attorney
By Catherine Leisch, Deputy County Attorney, Phoenix
Counsel for Respondent James Faherty, Tucson
In Propria Persona
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 James Faherty 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 order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). We find no such abuse here.
¶2 Pursuant to a plea agreement, Faherty was convicted of possession or use of a dangerous drug with one historical prior felony conviction and interfering with judicial proceedings. He was sentenced to a presumptive, 4.5-year prison term for the drug offense and to time served for the interference count. Faherty sought post-conviction relief, and appointed counsel filed a notice stating she had reviewed the record but found no claims to raise under Rule 32.
¶3 Faherty then filed a pro se petition, arguing trial counsel had been ineffective by failing to retain an expert to testify at sentencing about his "overwhelming physical and mental disabilities," and asserting he would have received a mitigated sentence had counsel done so. Faherty asked the trial court to order a "psychological evaluation" and posited "[t]he State might stipulate to an evidentiary hearing." In support of his argument, Faherty attached a lengthy, seven-page affidavit to his petition, essentially summarizing his prior head injuries.
Faherty argued he "presents to the lay observer as nearly catatonic."
Faherty attached an additional affidavit to his reply to the state's response to his Rule 32 petition, attesting he did not have access to his medical records and asking the trial court to "authorize a licensed clinician to obtain [his] extensive records and present them to the court and the state."
¶4 The trial court summarily denied Faherty's petition, and concluded:
The transcript of the sentencing demonstrates that both counsel and [Faherty] raised his injuries and their subsequent effects for the Court to consider . . . . From the Court's experience, it can say with certainty that more was not required of [Faherty's] counsel. Furthermore, neither more information nor an expert opinion would have helped---even assuming that such an expert would provide precisely the type of mitigation that defendant posits, the presumptive sentence was appropriate in the circumstances of this case. Such mitigation would not have resulted in a shorter sentence from this judge (who, after all, imposed the sentence).
¶5 On review, Faherty argues trial counsel had been ineffective for failing to present at sentencing "overwhelming medical evidence" of his "profound mental illness," reasserting he would have received a mitigated sentence if such evidence had been presented. Maintaining "[t]he Trial Court doesn't know what it doesn't know," Faherty contends he was entitled to an evidentiary hearing. A defendant is so entitled only if he presents a colorable claim for relief, that is, "he has alleged facts which, if true, would probably have changed the verdict or sentence." State v. Amaral, 239 Ariz. 217, ¶¶ 10-11 (2016). "To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006), citing Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶6 As the trial court correctly noted, at sentencing "both counsel and [Faherty] raised his injuries and their subsequent effects." Counsel specifically stated "a lot of Mr. Faherty's troubles stem from a traumatic brain injury" he received when he was "a young man." Faherty described his earlier injury and explained that he had suffered a recent head injury. Notably, Faherty also stated, "And whatever the Court feels, I accept, and I take the responsibility of what I did." When sentencing Faherty, the court considered his family support, that he is "older [and] that [his] health is not as good as it can be, for various and sundry reasons, including that old accident, [and] that [he] seem[ed] to be remorseful." Balancing those factors against the fact that this was Faherty's twelfth felony conviction, the court found the presumptive sentence "appropriate." Faherty has failed to provide any evidence establishing that the court abused its discretion by denying his claim of ineffective assistance of counsel or, in any event, that he was entitled to an evaluation by a mental health expert.
Faherty was fifty-nine years old at the time of sentencing.
¶7 Additionally, insofar as Faherty also suggests for the first time on review that that he is incompetent, that his sanity is at issue, and that counsel should have requested an evaluation pursuant to Rule 11, Ariz. R. Crim. P., we do not address issues raised for the first time in a petition for review. Rule 32.9(c)(4)(B)(ii) limits our review to the "issues the trial court decided that the defendant is presenting for appellate review." See also State v. Ramirez, 126 Ariz. 464, 467-68 (App. 1980) (appellate court will not consider on review any issue on which trial court had not first had opportunity to rule). We similarly do not consider the affidavit Faherty attached to his petition for review, which was not presented to the court below. See Ariz. R. Crim. P. 32.9(c)(4)(B)(ii); see also Ramirez, 126 Ariz. at 467-68.
¶8 We grant review but deny relief.