Opinion
No. 2 CA-CR 2018-0110-PR
08-13-2018
THE STATE OF ARIZONA, Respondent, v. STEVEN GUARDADO, Petitioner.
COUNSEL Ronald S. Gilleo, Mohave County Legal Defender By Eric Devany, Deputy Legal Defender, Kingman 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NOT FOR PUBLICATION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 Mohave County
No. CR201400716
The Honorable Billy K. Sipe Jr., Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL Ronald S. Gilleo, Mohave County Legal Defender
By Eric Devany, Deputy Legal Defender, Kingman
Counsel for Petitioner
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. ECKERSTROM, Chief Judge:
¶1 Steven Guardado seeks review of the trial court's order denying his petition for post-conviction relief and motion for rehearing filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb those orders unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). We find no such abuse here.
¶2 After a jury trial, Guardado was convicted of three counts of sale of a dangerous drug, possession of a dangerous drug for sale, possession of drug paraphernalia, and weapons misconduct. The trial court sentenced him to consecutive and concurrent prison terms totaling twenty-seven years. We affirmed Guardado's convictions and sentences on appeal. State v. Guardado, No. 1 CA-CR 15-0198 (Ariz. App. Mar. 31, 2016) (mem. decision).
¶3 After the jury was selected, but before opening statements, the trial court conducted an impeachment hearing at which Guardado's attorney, Ira Shiflett, asked to impeach the state's confidential informant (CI). The CI had three prior misdemeanor offenses, which included providing a false statement to a police officer, shoplifting and issuing a check with insufficient funds. Rule 609(a)(2), Ariz. R. Evid., provides that evidence of a criminal conviction for any crime "must be admitted if the court can readily determine that establishing the elements of the crime required proving—or the witness's admitting—a dishonest act or false statement." Subsection (b) further provides "if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later," evidence of the offense is admissible only if its probative value "substantially outweighs its prejudicial effect," and "the proponent gives [the] adverse party reasonable written notice of the intent to use it."
¶4 At the impeachment hearing, the trial court noted that although providing false information to a police officer "certainly involves a dishonest act or a false statement," because it "appear[ed]" that offense had occurred more than ten years earlier, it was inadmissible. The court also found that while issuing a bad check and shoplifting do not "necessarily implicate" dishonesty or a false statement, it did not have sufficient information to determine whether the facts in the CI's convictions rose to that level. Based on the "limited information" presented, the court precluded Shiflett from impeaching the CI on any of the convictions.
¶5 Guardado sought post-conviction relief, arguing that Shiflett had failed to adequately investigate and present mitigating evidence at sentencing, and that he had not adequately investigated the CI's criminal history, thus precluding him from impeaching her. The trial court conducted an evidentiary hearing. Shiflett testified that, consistent with his intention to impeach the CI, he had planned to, but did not, have the relevant "certified prior convictions" and police reports available at the impeachment hearing. In its written ruling, the trial court rejected Guardado's claims of ineffective assistance, noting that although Shiflett had not presented the court with "any documentation or other information to support" the CI's misdemeanor convictions at the impeachment hearing, he nonetheless had been "diligent in researching" the CI's criminal history and his conduct was not deficient. The court summarized the factual evidence presented at the evidentiary hearing, which included the police reports and conviction paperwork, and determined it would not have allowed the CI to be impeached even if it had reviewed those documents before making its initial ruling, and thus concluded Guardado was not prejudiced by Shiflett's conduct. It also found that issuing a check with insufficient funds "does not involve a[] dishonest act or false statement" under Rule 609(a)(2). The court then denied Guardado's subsequent motion for rehearing, and this petition for review followed.
Because Guardado does not challenge on review the trial court's denial of his claims of ineffective assistance of counsel related to sentencing and the CI's prior shoplifting conviction, he has waived them. See Ariz. R. Crim. P. 32.9(c)(4)(D).
¶6 On review, Guardado argues the trial court erred by finding Shiflett's conduct was not deficient, reasserting that he failed to obtain necessary documentation to support the CI's criminal history. He maintains that the facts related to the false statement conviction established that its admission was more probative than prejudicial despite it being more than ten years old, thus supporting his claim of ineffective assistance. Guardado additionally contends that the case law "suggests" the conviction for issuing a bad check also involves a false statement and he thus should have been permitted to impeach the CI for that offense, again pointing to Shifflett's allegedly deficient conduct.
¶7 To state a colorable claim of ineffective assistance of counsel, Guardado "must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced [him]." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006); see also Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984). To show prejudice, he must demonstrate that there is a "reasonable probability"—that is, "a probability sufficient to undermine confidence in the outcome" of the trial—that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
¶8 We find no abuse of discretion in the trial court's denial of Guardado's claims of ineffective assistance regarding the admissibility of the CI's false statement and bad check convictions. See Roseberry, 237 Ariz. 507, ¶ 7. Notably, Guardado has failed to describe on review any discernable prejudice stemming from the court's preclusion of these convictions. See Strickland, 466 U.S. at 694; see also State v. Salazar, 146 Ariz. 540, 541 (1985) (if defendant makes insufficient showing on either part of test for ineffective assistance, court need not address other part). Nor has he meaningfully addressed the court's determination that it would have denied Shiflett's request to impeach the CI even had the additional information been presented. Therefore, Guardado has not sustained his burden of establishing that the court abused its discretion when it denied his claims of ineffective assistance after the evidentiary hearing.
We note, however, that because making a false statement appears to be an inherent element of issuing a bad check under A.R.S. § 13-1807(A), see State v. Clough, 171 Ariz. 217, 223 (App. 1992), the trial court erred as a matter of law by not allowing Guardado to impeach the CI with the bad check conviction under Rule 609(A)(2). Guardado could have, but did not, raise this claim on appeal.
Although Guardado argued below that he was prejudiced by the trial court's preclusion of the impeachment evidence because "the state's case relied heavily" on the CI's testimony, he has not raised this argument on review. Moreover, at the evidentiary hearing, the state pointed out that the CI's testimony did not result in Guardado's convictions, rather, her testimony was corroborated by a "video and audio," the "buy money" that was found in Guardado's home, and his own admission that he had previously sold drugs. Guardado has not addressed these arguments on review, nor has he explained how the CI's credibility was central to the jury's verdicts.
¶9 Accordingly, we grant review and deny relief.