Opinion
No. 2 CA-CR 2015-0246-PR
07-29-2015
THE STATE OF ARIZONA, Respondent, v. CHAD EUGENE WOOLIVER, Petitioner.
COUNSEL The Brewer Law Office, Show Low By Benjamin M. Brewer 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NOT FOR PUBLICATION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 Mohave County
No. CR201001225
The Honorable Steven F. Conn, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL The Brewer Law Office, Show Low
By Benjamin M. Brewer
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Brammer concurred. VÁSQUEZ, Presiding Judge:
The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 Chad Wooliver seeks review of the trial court's order summarily denying his 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. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Wooliver has not met his burden of demonstrating such abuse here.
¶2 Wooliver was convicted after a bench trial of three counts of reckless child abuse, pursuant to A.R.S. § 13-3623(B)(2), and one count of possession of drug paraphernalia, pursuant to A.R.S. § 13-3415(A). The trial court sentenced him to concurrent prison terms, the longest of which was five years. We affirmed his convictions and sentences on appeal. State v. Wooliver, No. 1 CA-CR 11-0745 (memorandum decision filed Sept. 18, 2012).
¶3 Wooliver then sought post-conviction relief, arguing his trial counsel had been ineffective because she stipulated to the admission of a supplemental dependency petition and called two witnesses, and that evidence, in part, supported the state's case. He reasoned that, absent the additional evidence, the state had not proven "its case beyond a reasonable doubt" because there would have been insufficient evidence to show the children had been in his "care" as required by § 13-3623(B). He further claimed appellate counsel had been ineffective because she failed to argue on appeal that the evidence was insufficient to support his child-abuse convictions.
The trial court noted in its ruling following the bench trial that the state "ha[d] conceded that the prosecution [wa]s not based on [Wooliver] having custody of his children" and was grounded instead in whether he had them in his care.
¶4 The trial court summarily denied relief. It noted that, even assuming trial counsel's decision to stipulate to the admission of the additional evidence was unreasonable, Wooliver had not shown resulting prejudice because the remaining evidence was sufficient to support Wooliver's child-abuse convictions. In light of that conclusion, it also rejected Wooliver's claim of ineffective assistance of appellate counsel.
¶5 On review, Wooliver repeats his claim of ineffective assistance of trial counsel and argues the trial court erred in concluding he had not demonstrated prejudice. "To state a colorable claim of ineffective assistance of counsel," Wooliver was required to "show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced [him]." State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006), citing Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶6 Wooliver fails to offer any definition of the term "care," much less explain how the evidence presented by the state was insufficient. In its ruling, the trial court noted that the evidence presented by the state showed Wooliver was living with the children, acknowledged he was their biological father, attempted to participate in a safety plan implemented by Child Protective Services, and requested during his arrest that "[his] kids" be placed with his relatives. This evidence readily supports a conclusion that the children were in Wooliver's care. See State v. Jones, 188 Ariz. 388, 394, 937 P.2d 310, 316 (1997) ("'[c]are' and 'custody'" in child-abuse statute means only "that the defendant accept responsibility for the child in some manner").
¶7 Wooliver instead focuses on the trial court's comment in its ruling following the bench trial that "the evidence is less than overwhelming on [the issue of care], primarily because of the dearth of evidence presented." He reasons that, if there was a "dearth" of evidence, it necessarily follows the evidence could not constitute proof beyond a reasonable doubt absent the purportedly inculpatory evidence presented by his trial counsel. But the court explained this comment in its ruling denying post-conviction relief, stating only that it "meant to convey that this issue was not as obvious as it would be in the normal situation of the nuclear family unit." Particularly in the absence of any legal argument that the evidence presented by the state was insufficient, we decline Wooliver's invitation to dismiss the court's explanation as "insufficient."
¶8 Wooliver has not sustained his burden of demonstrating that the trial court abused its discretion in summarily denying his petition for post-conviction relief. Accordingly, although we grant review, we deny relief.