Opinion
No. 2 CA-CR 2013-0309-PR
11-13-2013
THE STATE OF ARIZONA, Respondent, v. GARY JAY KARPIN SR., Petitioner.
Gary J. Karpin, Kingman 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NOT FOR PUBLICATION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. CR2006031057001SE
The Honorable Warren J. Granville, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Gary J. Karpin, Kingman In Propria Persona
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. KELLY, Presiding Judge:
¶1 Gary Karpin petitions this court for review of the trial court's order summarily dismissing 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 Following a jury trial in 2008, Karpin was convicted of twenty-three counts of theft by means of material misrepresentation and one count of fraudulent schemes and artifices. The trial court imposed concurrent, presumptive sentences totaling 15.75 years, to be followed by five years' probation. On appeal, this court affirmed Karpin's convictions and sentences, State v. Karpin, No. 1 CA-CR 08-1047 (memorandum decision filed Oct. 12, 2010), and affirmed the imposition of restitution, State v. Karpin, No. 1 CA-CR 10-0158 (memorandum decision filed Feb. 17, 2011).
¶3 After appointed Rule 32 counsel advised the court he was unable to find any "meritorious issue" to raise in a Rule 32 petition, Karpin filed a pro se petition for post-conviction relief, raising several claims. The court dismissed the petition, stating that it agreed with "the reasons stated in the State's response" to the petition for post-conviction relief, and further noted that the state had "addressed each of [Karpin's] claims with specificity on both a legal level and factual level."
¶4 Karpin presents twelve arguments on review, and asks that we "vacate and reverse [his] conviction[s] with prejudice." We summarize his arguments as follows: (1) and (2) attorney Michael Urbano, who previously had represented Karpin but did not represent him at trial in the underlying matter, rendered ineffective assistance of counsel by testifying at trial, thereby causing Karpin prejudice; (3) the prosecutor's conduct denied Karpin his right to the effective assistance of counsel; (4) attorney Leo Valverde, who represented Karpin in an advisory capacity at trial, "breached his duty of loyalty" to Karpin; (5) Valverde rendered ineffective assistance of counsel at the sentencing hearing; (6) the prosecutor engaged in prosecutorial misconduct by improperly conferring a benefit on Valverde; (7) jurors and the prosecutor behaved inappropriately; (8) there is newly discovered, exculpatory evidence; (9) State v. Fish, 222 Ariz. 109, 213 P.3d 258 (App. 2009), constitutes a significant change in the law entitling Karpin to relief; (10) Karpin is "entitled to the application" of Skilling v. United States, 130 S. Ct. 2896 (2010), to his convictions; (11) appellate counsel was ineffective; and, (12) Judge Granville, who Karpin alleges "was conflicted" and should have recused himself, violated Karpin's Sixth Amendment right to counsel by permitting Urbano to testify at trial. Karpin also claims he is entitled to an evidentiary hearing on claims six, seven and eight.
Although the record on appeal does not appear to contain documentation of Urbano's previous representation of Karpin, the parties apparently do not dispute this fact.
¶5 Relying on the state's response to the petition for post-conviction relief, the trial court correctly found Karpin's claims that Urbano was ineffective and that he was prejudiced thereby (claims one and two) to be without merit. As the state accurately argued, "Mr. Urbano did not represent [Karpin] in this case and therefore could not have been ineffective." We agree, and thus reject Karpin's argument that "[i]t is irrelevant Urbano was not trial counsel." To the extent Karpin wanted to challenge the admission of Urbano's testimony, he should have asserted such a claim based on a legal theory other than ineffective assistance of counsel, and any such claim could have been raised on appeal.
¶6 In addition, Karpin's claims of prosecutorial misconduct (claims three, six, and seven), are precluded because they could have been raised on appeal. See Ariz. R. Crim. P. 32.2(a)(3) (claims precluded if waived on appeal). This is so despite the fact that Karpin attempted to present one of them (claim three) as a claim of ineffective assistance of counsel. However, despite its label, it is in fact a claim of prosecutorial misconduct, and thus is precluded.
¶7 Because Karpin also could have raised his claim of juror misconduct (claim seven) on appeal, it likewise is precluded. Moreover, Rule 32.9(c)(1) requires that a petition for review contain the facts material to any issues decided by the trial court that the defendant presents for our review, as well as the reasons relief should be granted on those issues. Although Karpin refers generally to this claim of juror misconduct, he fails to explain how the court erred in rejecting it and, accordingly, has failed to meet his burden of demonstrating the court abused its discretion in doing so. Cf. State v. Moody, 208 Ariz. 424, n.9, 94 P.3d 1119, 1147 n.9 (2004) (failure to develop argument on appeal results in waiver; "merely mentioning an argument is not enough").
¶8 Karpin likewise fails to provide any support for his argument that the prosecutor withheld exculpatory evidence, a claim he characterizes as one of newly discovered evidence pursuant to Rule 32.1(e) (claim eight). Other than stating the evidence "was discovered post-trial and occurred outside the purview of J. Granville's court[]room," and directing this court to the affidavit he attached to his petition below, Karpin fails to explain why it is newly discovered and why he was entitled to relief on this ground. To be entitled to relief on such a claim, a petitioner first must demonstrate the evidence is newly discovered. See State v. Serna, 167 Ariz. 373, 374, 807 P.2d 1109, 1110 (1991) (describing five elements of successful newly discovered evidence claim).
¶9 We likewise do not address Karpin's claims that Skilling, 130 S. Ct. 2896, applies to this case (claim ten) and that appellate counsel was ineffective (claim eleven). Karpin merely directs us to his petition below "for the merits of [these] claim[s] and argument[s]," while failing to provide any argument to support his assertion that the court erred by dismissing them. See Ariz. R. Crim. P. 32.9(c)(1); Moody, 208 Ariz. 424, n.9, 94 P.3d at 1147 n.9.
¶10 Karpin also claims Valverde was ineffective at trial (claim four). Although Karpin waived the right to counsel and represented himself at trial, Valverde was appointed as advisory counsel. Nonetheless, in what appears to be a claim of ineffective assistance of counsel, Karpin challenges Valverde's "loyalty" in his capacity as advisory counsel, maintaining his performance was influenced by an alleged personal friendship with the prosecutor. However, there is no legally cognizable claim for ineffective assistance of advisory counsel. See State v. Russell, 175 Ariz. 529, 534, 858 P.2d 674, 679 (App. 1993) ("[A]fter waiving his right to counsel at trial, the defendant has no constitutionally protected right to challenge the advice or services provided by advisory counsel."). Therefore, the court properly dismissed this claim.
¶11 Karpin further contends that Valverde, who represented him at sentencing, also was ineffective in that capacity (claim five). As the state correctly noted in its response below, however, Karpin failed to "identif[y] what else Mr. Valverde could or should have done [at sentencing] or how that unidentified action would have changed the outcome of his sentence in any way." Karpin instead asserts that he "was entitled to conflict-free representation," that Valverde essentially had ignored mitigating evidence, and that the trial court was required to conduct an evidentiary hearing on this claim. See Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1980) (prejudice presumed when counsel is burdened by actual conflict of interest). In the absence of any argument supporting his assertion that the court erred in rejecting this claim, however, we do not address it. See Ariz. R. Crim. P. 32.9(c)(1)(iv).
After Karpin advised the court he no longer wished to represent himself, Valverde was appointed to represent him at sentencing.
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¶12 Karpin also argues that Fish, 222 Ariz. 109, 213 P.3d 258, constitutes a significant change in the law entitling him to relief pursuant to Rule 32.1(g) (claim nine). However, other than stating that Fish was decided "post-appeal briefs and post-trial," and asserting that case would have permitted the court to provide an additional jury instruction and obligated it to admit the testimony of "precluded witnesses," Karpin fails to establish how the decision constitutes a significant change in the law pursuant to Rule 32.1(g). The trial court, therefore, properly dismissed this claim.
¶13 Finally, Karpin contends Judge Granville "was conflicted and should have recused himself," again asserting the trial court erred by permitting Urbano to testify (claim twelve). We do not address this claim for two reasons. First, it does not appear Karpin raised it in his petition below. See Ariz. R. Crim. P. 32.9(c)(1)(ii); Ramirez, 126 Ariz. 464, 468, 616 P.2d at 928. And second, Karpin's claim that the judge should have recused himself is wholly undeveloped and unsupported by the record. See Moody, 208 Ariz. 424, n.9, 94 P.3d at 1147 n.9.
¶14 Accordingly, although we grant review, we deny relief.