Opinion
No. 2 CA-CR 2018-0083-PR
08-24-2018
THE STATE OF ARIZONA, Respondent, v. JOSEPH SCOTT VALDEZ, Petitioner.
Joseph Scott Valdez, Buckeye 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Maricopa County
No. CR2013420372001DT
The Honorable Virginia L. Richter, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
Joseph Scott Valdez, Buckeye
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 Joseph Valdez seeks review of the trial court's order denying his pro se petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling 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, Valdez was convicted of possession of drug paraphernalia and possession or use of dangerous drugs. The trial court sentenced him to concurrent, presumptive prison terms, the longer of which is ten years. We affirmed Valdez's convictions and sentences as modified on appeal. State v. Valdez, No. 1 CA-CR 14-0835 (Ariz. App. Nov. 17, 2015) (mem. decision). Valdez then sought post-conviction relief, and after appointed counsel notified the court he was "unable to discern any colorable claim upon which to base a Petition for Post-Conviction Relief," Valdez filed a pro se, supplemental petition.
¶3 In his Rule 32 petition, Valdez alleged trial counsel was ineffective for failing to file a motion to suppress based on State v. Serna, 235 Ariz. 270, ¶ 28 (2014) (during consensual encounter, absent consent, officer may frisk individual only with reasonable suspicion person has engaged or is about to engage in criminal activity, and is armed and dangerous). He also asserted he is entitled to relief pursuant to Brady v. Maryland, 373 U.S. 83 (1963). After conducting an evidentiary hearing, the trial court denied relief. This pro se petition for review followed.
Because Valdez does not reassert this claim on review, he has waived it, and we thus do not address it. See Ariz. R. Crim. P. 32.9(c)(4)(D).
Although Valdez filed a pro se petition for post-conviction relief, the trial court appointed counsel to represent him at the Rule 32 evidentiary hearing.
¶4 In May 2013, at approximately 11:30 p.m., Phoenix police officers stopped Valdez after they noticed the bicycle he was riding did not have a white front light as required by law. See A.R.S. § 28-817(A). Valdez was wearing a baggy t-shirt that "absolutely" could have concealed a weapon. When one of the officers asked Valdez if he had a weapon, he stated he had a knife in his pocket. The officer then conducted a Terry frisk, removing a knife from Valdez's right front pocket; as he did so, the "pocket kind of turned inside out," also revealing a capped syringe. See Terry v. Ohio, 392 U.S. 1, 9 (1968). The officer determined the syringe was drug paraphernalia, placed Valdez in handcuffs for officer safety, and searched him "to see if there were any drugs in his pocket to go along with the drug paraphernalia." He discovered two plastic bags that contained methamphetamine.
The officer testified he did not let Valdez remove the knife from his own pocket because it was "a lot safer" to do it himself, to avoid letting Valdez have access to a "deadly weapon." He added that he routinely asks detainees about weapons for safety reasons, and stated that the area where this incident occurred "is not the best neighborhood," noting it had problems with drugs, burglaries, thefts and some violent crime.
¶5 In its ruling denying post-conviction relief, the trial court determined that, unlike Serna, which involved a consensual encounter, the stop here was not consensual. The court thus rejected Valdez's argument that Serna controls. It further concluded that, based on Valdez's admission that he "was armed with a knife," the officers "had more than a reasonable belief" that he was armed and dangerous, and thus determined counsel was not ineffective for failing to file a motion to suppress.
¶6 On review, Valdez argues the trial court misapplied the holding in Serna. He does not dispute the initial legality of the stop, nor does he suggest he was detained for an unreasonable amount of time. However, asserting that a minor traffic violation does not constitute a crime, Valdez maintains that no criminal activity was afoot, and further argues that absent any evidence he was armed and dangerous, the search was illegal under Serna and other case law. See, e.g., Arizona v. Johnson, 555 U.S. 323, 326-27 (2009); Gastelum v. Hegyi, 237 Ariz. 211, ¶¶ 8-9 (App. 2015). He contends that "[a] common pocket knife is more a tool than a weapon," suggesting his possession of the knife did not establish he was "armed," and further maintains there was no evidence he was dangerous. He thus reasserts that trial counsel was ineffective for failing to file a motion to suppress and requests another evidentiary hearing.
¶7 To state a colorable claim of ineffective assistance of counsel, Valdez "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 initially note that the trial court correctly concluded that "Serna is distinguishable [from this case] because it involved a consensual encounter." Having first noticed Valdez riding a bicycle late at night without a headlight, the officers had probable cause to stop him and investigate a violation of § 28-817(A), a fact Valdez does not meaningfully dispute. See State v. Starr, 222 Ariz. 65, ¶ 12 (App. 2009) (officer may make investigative traffic stop based on reasonable suspicion of traffic violation). The officer then asked Valdez if he had a weapon, a question the officer asks of "everybody [he] stop[s]," and something he does to ensure his own safety and that of the individual he is stopping. "[T]he government has a 'legitimate and weighty' interest in officer safety." State v. Childress, 222 Ariz. 334, ¶ 15 (App. 2009), quoting Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977); see also Michigan v. Long, 463 U.S. 1032, 1047 (1983) (traffic stops "especially fraught with danger to police officers").
¶9 Once Valdez told the officer he had a knife in his pocket, the officer conducted a pat-down search, as previously noted. We find unavailing Valdez's argument that a pocket knife is not a weapon, particularly in light of his own affirmative response to the officer's question when asked if he was carrying a weapon. An officer is "entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of [possibly armed and presently dangerous] persons in an attempt to discover weapons which might be used to assault him." Terry, 392 U.S. at 30; see State v. Ramsey, 223 Ariz. 480, ¶ 17 (App. 2010) ("[A]n officer may conduct a weapons frisk if, based on specific, articulable facts, the officer has any reasonable fear for safety.").
¶10 Here, the officers initiated a valid traffic stop late at night in an area known for high-crime activity. Valdez responded affirmatively when asked if he had a weapon. When we evaluate the "reasonableness" of a pat-down search, we must consider "the particular circumstances" that the law enforcement officer faced. State v. Dixon, 24 Ariz. App. 303, 304 (1975). The totality of the circumstances here establish the officer had reasonable grounds to conduct a weapons frisk. See State v. Fornof, 218 Ariz. 74, ¶ 7 (App. 2008) (refusing to analyze reasonable suspicion by a "piecemeal evaluation of the innocence of each individual factor"). As the trial court correctly found, "[o]nce lawfully stopped," based on Valdez's admission that he was carrying a knife, officers had "a reasonable belief that he was armed and dangerous to conduct a frisk." Accordingly, we find no abuse of discretion in the court's rejection of Valdez's claim of ineffective assistance of counsel. See Bennett, 213 Ariz. 562, ¶ 21.
¶11 Therefore, we grant review and deny relief.