Opinion
No. 2 CA-CR 2017-0330-PR
05-25-2018
THE STATE OF ARIZONA, Respondent, v. GEORGE BENJAMIN LARIN, Petitioner.
COUNSEL Barton & Storts P.C., Tucson By Brick P. Storts III 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NOT FOR PUBLICATION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 Pima County
No. CR20111979001
The Honorable Javier Chon-Lopez, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Barton & Storts P.C., Tucson
By Brick P. Storts III
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 George Larin seeks review of the trial court's orders denying his petition for post-conviction relief and motion for rehearing. We will not disturb those orders unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Larin has not shown such abuse here.
¶2 After a jury trial, Larin was convicted of burglary, armed robbery, aggravated robbery, and two counts of kidnapping. State v. Larin, 233 Ariz. 202, ¶ 1 (App. 2013). The trial court imposed concurrent prison terms, the longest of which was eighteen years. We affirmed his convictions on appeal but, pursuant to the state's cross-appeal, vacated his sentences and remanded the case to the trial court for further proceedings. Id. ¶¶ 1, 43. On remand, based on the parties' stipulation, the court imposed the same prison terms.
¶3 Larin sought post-conviction relief, arguing his trial counsel had been ineffective for failing to file a motion to suppress an in-court identification, request a lesser-included offense of false imprisonment, argue for a "directed verdict," raise various objections throughout trial, adequately investigate the case by interviewing testifying witnesses before trial, or give Larin "proper advice necessary to arrive at a reasonable disposition the case." He further claimed counsel had failed to interview two potential witnesses, couching the claim in terms of newly discovered evidence and providing affidavits from those witnesses. Larin additionally raised a claim of newly discovered evidence based on an affidavit by one of his codefendants. The thrust of the three affidavits was that Larin had not participated in the home invasion that formed the basis of his convictions.
¶4 The trial court summarily denied relief. It concluded the newly identified witness affidavits were not newly discovered and, in any event, would not have altered the verdict. It also rejected Larin's various claims of ineffective assistance, relying in part on evidence from trial counsel's affidavit provided by the state, in which counsel avowed he had no reason to believe the two potential witnesses would offer useful
information at trial and he had spoken with Larin's codefendant without him mentioning Larin's purported lack of involvement.
¶5 Larin then sought rehearing, asserting trial counsel's claim in his affidavit that he had spoken with Larin's codefendant was contradicted by other evidence. Thus, Larin reasoned, the trial court erred by relying on counsel's affidavit in rejecting his claims of ineffective assistance. The court repeated its rejection of Larin's claim of newly discovered evidence based on the codefendant's affidavit, but set an evidentiary hearing for the court to evaluate trial counsel's "credibility/reliability." After that hearing and supplemental briefing, the court denied the motion for rehearing. The court first observed it did not rely on counsel's statements about Larin's codefendant in denying relief. It further stated that, although counsel incorrectly claimed in his affidavit that he was unaware the two potential witnesses might have offered useful testimony, Larin nonetheless had not demonstrated their testimony would have altered the verdicts. This petition for review followed.
¶6 On review, Larin first argues the trial court erred by rejecting his claims of ineffective assistance because counsel made "false statements both in his affidavit and during his testimony" at the evidentiary hearing. To prevail on his claims, Larin "was required to demonstrate that counsel's conduct fell below prevailing professional norms and that he was prejudiced thereby." State v. Denz, 232 Ariz. 441, ¶ 6 (App. 2013), citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984). There is "[a] strong presumption" that counsel "provided effective assistance," State v. Febles, 210 Ariz. 589, ¶ 20 (App. 2005), which Larin must overcome by providing evidence that counsel's conduct did not comport with prevailing professional norms, see State v. Herrera, 183 Ariz. 642, 647 (App. 1995). Moreover, tactical or strategic decisions rest with counsel, State v. Lee, 142 Ariz. 210, 215 (1984), and we will presume "that the challenged action was sound trial strategy under the circumstances," State v. Stone, 151 Ariz. 455, 461 (App. 1986). To show prejudice, a defendant must show 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.
¶7 Larin contends that counsel's purportedly false statements "prejudiced" him because they "negate[d] the trial court's ability to rely on any presumption that [trial counsel's] performance" was reasonable. But even were we to agree with Larin that counsel's misstatements required the
trial court to abandon the presumption that counsel acted reasonably in declining to interview and call the potential witnesses, Larin is not entitled to relief. Larin acknowledges in his petition that he does not challenge the court's conclusion that the witnesses' testimony would not have altered the outcome of his trial. Absent such prejudice, this claim of ineffective assistance fails. See Denz, 232 Ariz. 441, ¶ 6.
¶8 Larin also repeats his claims that counsel was ineffective in failing to conduct pretrial interviews of two other witnesses who testified at trial, asserting competent counsel would have interviewed all "material witnesses." But he ignores the trial court's conclusion that Larin had not demonstrated the result of the proceeding would have been different had counsel interviewed those witnesses. Thus, this claim of ineffective assistance also fails. See id. Larin does not assert the court erred in summarily rejecting his other claims of ineffective assistance.
¶9 We grant review but deny relief.