Opinion
No. 1 CA-CR 15-0464 PRPC
01-23-2018
STATE OF ARIZONA, Respondent, v. ALICIA LEAH GILSTRAP, Petitioner.
COUNSEL Mohave County Attorney's Office, Kingman By Matthew J. Smith Counsel for Respondent Law Office of Daniel DeRienzo PLLC, Prescott Valley By Daniel J. DeRienzo Counsel for 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Mohave County
No. S8015CR201000770
The Honorable Derek C. Carlisle, Judge
REVIEW GRANTED; RELIEF GRANTED
COUNSEL
Mohave County Attorney's Office, Kingman
By Matthew J. Smith
Counsel for Respondent
Law Office of Daniel DeRienzo PLLC, Prescott Valley
By Daniel J. DeRienzo
Counsel for Petitioner
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge James P. Beene and Judge Randall M. Howe joined.
CATTANI, Judge:
¶1 Alicia Leah Gilstrap petitions for review of the superior court's dismissal of her petition for post-conviction relief. For reasons that follow, we grant review and grant relief by reversing the dismissal and remanding for an evidentiary hearing.
¶2 Gilstrap was in a bathroom at a residence when police officers arrived to execute an unrelated search warrant. Officers searched her purse and found drugs, drug paraphernalia, and a "pay/owe sheet" suspected to be a drug sales ledger. Gilstrap claimed that the items the officers found did not belong to her and must have been put there by someone else.
¶3 A jury found Gilstrap guilty of possession of dangerous drugs for sale, possession of marijuana, and two counts of possession of drug paraphernalia. The superior court sentenced her to concurrent terms of imprisonment, the greatest of which is 15.75 years. The Arizona Supreme Court affirmed her convictions and sentences on appeal. State v. Gilstrap, 235 Ariz. 296 (2014).
¶4 Gilstrap filed a petition for post-conviction relief asserting a claim of ineffective assistance of counsel. She argued that her trial counsel was ineffective by (1) failing to move to preclude an officer's testimony that her purse was in the bathroom instead of the adjoining bedroom and (2) not presenting evidence that the "pay/owe sheet" in her purse was not in her handwriting. The superior court found that Gilstrap did not raise a colorable claim for relief and summarily dismissed the petition.
¶5 Gilstrap argues the superior court erred by dismissing her petition without conducting an evidentiary hearing. We review the summary dismissal of a petition for post-conviction relief for an abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006). Summary dismissal is appropriate if no claim "presents a material issue of fact or law which would entitle the defendant to relief under this rule and [] no purpose would be served by any further proceedings." Ariz. R. Crim. P.
32.6(c). To warrant an evidentiary hearing, a petition must present a colorable claim for relief. State v. Krum, 183 Ariz. 288, 292 (1995). A colorable claim is one that, if the allegations are true, would probably have changed the outcome. State v. Amaral, 239 Ariz. 217, 220, ¶ 10 (2016). In this context, the defendant's allegations are viewed in light of the entire record. State v. Lemieux, 137 Ariz. 143, 146 (App. 1983).
¶6 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 counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). If a defendant fails to make a sufficient showing on either prong of the Strickland test, we need not determine whether the other prong was satisfied. State v. Salazar, 146 Ariz. 540, 541 (1985).
¶7 Gilstrap argues that the superior court erred by finding that no prejudice resulted from counsel's failure to move to preclude a police officer's testimony that (contrary to the State's pretrial position) Gilstrap's purse was found in the bathroom and not in the adjoining bedroom. We disagree. Even if the officer's testimony had been precluded, trial counsel could not have ethically argued that the purse was never in the bathroom because Gilstrap testified at a pretrial evidentiary hearing that the purse had been in the bathroom. Moreover, Gilstrap's position at trial was that she was in the shower and would not have noticed someone placing items in her purse, regardless where the purse had been placed. Accordingly, the superior court did not abuse its discretion by concluding that Gilstrap had not established prejudice based on counsel's failure to move to preclude the officer's testimony.
¶8 Gilstrap's argument regarding the "pay/owe sheet," however, presented a colorable claim warranting an evidentiary hearing. Defense counsel admitted that he did not look at the drug sales ledger or discuss it with Gilstrap before trial, even though police reports and evidence lists referred to it. Gilstrap's petition for post-conviction relief included two affidavits bearing on the issue: (1) Gilstrap's own affidavit stating that the ledger was not in her handwriting and that she did not create it and (2) an affidavit from her sister stating that the ledger was not in Gilstrap's handwriting. Gilstrap's own affidavit did not assert that she would have testified but for counsel's failure to discuss the ledger with her; thus, that affidavit alone did not establish a basis for relief. But her sister's affidavit rendered the claim colorable by offering testimony that arguably would have supported a defense theory that someone other than Gilstrap had written the ledger, undermining the sales-related conviction. The
superior court rejected this basis for the ineffective assistance claim, noting that Gilstrap's sister was going through drug court at the time of trial. But without hearing from Gilstrap's sister at an evidentiary hearing, the court could not properly assess Gilstrap's sister's credibility and her knowledge of Gilstrap's handwriting.
¶9 Accordingly, we grant review and grant relief by reversing dismissal of Gilstrap's ineffective assistance claim only as to counsel's failure to present evidence regarding the drug ledger, and remanding for an evidentiary hearing. We leave to the superior court to assess witness credibility and to determine whether, in light of the other evidence presented at trial, potential testimony from Gilstrap and her sister regarding whether the drug ledger was in Gilstrap's handwriting would have changed the outcome of trial.