Opinion
No. 2 CA-CR 2017-0052-PR
04-25-2017
THE STATE OF ARIZONA, Respondent, v. RONNY SLATE RAMIREZ, Petitioner.
COUNSEL Kent Volkmer, Pinal County Attorney By Rodney States, Deputy County Attorney, Florence Counsel for Respondent Harriette P. Levitt, Tucson 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NOT FOR PUBLICATION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. 31.24. Petition for Review from the Superior Court in Pinal County
No. S1100CR201100775
The Honorable Joseph R. Georgini, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Kent Volkmer, Pinal County Attorney
By Rodney States, Deputy County Attorney, Florence
Counsel for Respondent Harriette P. Levitt, Tucson
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Espinosa and Judge Miller concurred. STARING, Presiding Judge:
¶1 Ronny Ramirez seeks review of the trial court's dismissal of 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 abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We find no such abuse here.
¶2 After a jury trial, Ramirez was convicted of theft of property with a value of $25,000 or more but less than $100,000 related to the theft of several items of jewelry from the victim, some of which were never found, and some of which were found in Ramirez's possession. The trial court sentenced Ramirez to a presumptive prison term of five years with 1,222 days of presentence incarceration credit and ordered him to pay restitution of $102,020.79. On appeal, we affirmed Ramirez's conviction and sentence, as corrected, finding the evidence sufficient to support the jury's verdict. State v. Ramirez, No. 2 CA-CR 2014-0293 (Ariz. App. Mar. 18, 2015) (mem. decision).
It appears Ramirez is no longer in custody.
¶3 Ramirez then sought post-conviction relief, arguing trial counsel was ineffective for failing to adequately challenge the value of the stolen property and asserting such a challenge would have "affected the restitution order . . . [and] affected the jury's verdict as to the class of felony for which [Ramirez] was ultimately convicted and possibly as to whether [Ramirez] would have been convicted at all." He attached to the Rule 32 petition affidavits from jewelers and an investigator challenging the validity of the appraisals used to value the stolen jewelry, and more specifically, the value of an unrecovered sapphire ring found to be worth at least $120,000 at trial. Ramirez further argued if trial counsel had "introduced testimony from a reputable jeweler regarding the value of the recovered items," the victim's credibility would have been "diminished."
¶4 The trial court summarily denied relief, finding the matters raised "are precluded as having been previously ruled upon or untimely filed or the Petition lacks sufficient basis in law and fact to warrant further proceedings." This petition for review followed. On review, Ramirez argues the court erred by denying his petition below, maintaining he presented "a prima facie case" of ineffective assistance of counsel requiring an evidentiary hearing. He contends trial counsel "failed to challenge in any meaningful way the alleged victim's valuations of her jewelry," his Rule 32 petition established that "most of the recovered items [of jewelry] were junk," and the appraisal for the sapphire ring was "bogus." He argues he was entitled to an evidentiary hearing to establish, at the very least, that the jewelry was not worth $25,000, and at best, that the victim "was a complete liar."
¶5 "To state a colorable claim of ineffective assistance of counsel, a defendant must both show that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). We note that, despite Ramirez's assertion that he presented a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing, he has failed to provide the appropriate standard for a colorable claim requiring such a hearing, much less establish how he satisfied that standard. See Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d at 67 (defendant entitled to hearing of non-precluded claim for post-conviction relief if claim "is colorable"). To state a colorable claim of ineffective assistance, Ramirez was required to "offer some demonstration that the attorney's representation fell below that of the prevailing objective standards . . . [and] some evidence of a reasonable probability that, but for counsel's unprofessional errors, the outcome of the [proceeding] would have been different." State v. Rosario, 195 Ariz. 264, ¶ 23, 987 P.2d 226, 230 (App. 1999). A trial court "shall" summarily dismiss a Rule 32 petition if all claims are precluded or if, with respect to non-precluded claims, it finds there is no "material issue of fact or law which would entitle the defendant to relief." Ariz. R. Crim. P. 32.6(c).
¶6 In addressing the sufficiency of counsel's performance, there is "[a] strong presumption" that counsel "provided effective assistance," State v. Febles, 210 Ariz. 589, ¶ 20, 115 P.3d 629, 636 (App. 2005), which the defendant must overcome by demonstrating that counsel's conduct did not comport with prevailing professional norms, see State v. Herrera, 183 Ariz. 642, 647, 905 P.2d 1377, 1382 (App. 1995). Notably, Ramirez failed to point out several locations in the trial transcript establishing that defense counsel aggressively questioned the victim regarding her valuation of the jewelry. We also note that, "[o]rdinarily, the owner of property is competent to give an opinion of its value." State v. Rushing, 156 Ariz. 1, 4, 749 P.2d 910, 913 (1988).
¶7 Nor has Ramirez acknowledged that, in trial counsel's written response to the state's request for restitution, counsel not only challenged the propriety of permitting the victim to value the stolen property based on her own expertise and its sentimental value to her, but he proposed obtaining an appraisal by an "uninterested party." Ramirez has not only failed to present arguments establishing that trial counsel's conduct fell below prevailing professional norms, but he has not provided any affidavits to support such an argument. See Ariz. R. Crim. P. 32.5 ("Affidavits, records, or other evidence currently available to the defendant supporting the allegations of the petition shall be attached to it.").
¶8 Additionally, at the resentencing/restitution hearing in August 2014, defense counsel asserted the jury had not found Ramirez guilty of having taken the sapphire ring, and urged the trial court to limit the restitution to $50,878, maintaining that was the amount of economic loss that had been proven at trial. Similarly, in his written response to the restitution request, trial counsel repeatedly pointed out that the verdict showed the jury was "NOT convinced" that Ramirez had stolen the sapphire ring. Ramirez has failed to rebut the presumption that trial counsel employed a reasonable trial strategy by focusing the jury's attention on the fact that Ramirez did not steal the ring in the first instance, rather than focusing on its potential value. "Disagreements as to trial strategy . . . will not support a claim of ineffective assistance of counsel as long as the challenged conduct could have some reasoned basis." State v. Meeker, 143 Ariz. 256, 260, 693 P.2d 911, 915 (1984).
¶9 Finally, to the extent the trial court found Ramirez was precluded from raising a claim of ineffective assistance of counsel because the underlying claim was fully adjudicated on appeal, we note that a claim of ineffective assistance of counsel is independent from the claim upon which it is based. See State v. Spreitz, 202 Ariz. 1, ¶ 9, 39 P.3d 525, 527 (2002) (ineffective assistance of counsel claims to be brought only in post-conviction proceedings and not on direct appeal). Consequently, the court erred when it found the claim of ineffective assistance of counsel precluded. However, for the reasons stated above, we conclude the court did not abuse its discretion in denying relief. Cf. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (appellate court is obliged to affirm trial court's ruling if result legally correct for any reason).
¶10 Accordingly, we grant review but deny relief.