Opinion
No. 2 CA-CR 2015-0048-PR
04-29-2015
THE STATE OF ARIZONA, Respondent, v. REY DAVID AGUIRRE, Petitioner.
COUNSEL Mark Brnovich, Arizona Attorney General By Kim Ortiz, Assistant Attorney General, Tucson Counsel for Respondent 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NOT FOR PUBLICATION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. 31.24.
Petition for Review from the Superior Court in Pima County
No. CR20120302001
The Honorable Christopher Browning, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Mark Brnovich, Arizona Attorney General
By Kim Ortiz, Assistant Attorney General, Tucson
Counsel for Respondent
Barton & Storts, P.C., Tucson
By Brick P. Storts, III
Counsel for Petitioner
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 Rey Aguirre 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 clearly abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Aguirre has not met his burden of demonstrating such abuse here.
¶2 After a jury trial, Aguirre was convicted of conspiracy, illegally conducting an enterprise, transporting more than two pounds of marijuana for sale, two counts of transporting less than two pounds of marijuana for sale, two counts of money laundering, and thirty-three counts of use of a wire or electronic communication in drug-related transactions. He was sentenced to consecutive and concurrent prison terms totaling 10.5 years, to be followed by a seven-year term of probation. We affirmed his convictions and sentences on appeal. State v. Aguirre, No. 2 CA-CR 2013-0399 (memorandum decision filed June 17, 2014).
¶3 Aguirre sought post-conviction relief, arguing his trial counsel had been ineffective in agreeing to stipulate that a law enforcement officer was able to recognize his voice on recorded telephone calls, as well as by stipulating to the admission into evidence of recorded telephone calls and a forensic report concerning a seized shipment of marijuana. He additionally claimed that counsel had been ineffective in seeking withdrawal from the case because he did not provide a basis for withdrawal and because counsel allowed part of the hearing on that motion to be conducted off the record. The trial court summarily denied relief, and this petition for review followed.
¶4 On review, Aguirre argues the trial court erred in rejecting his claim that counsel had been ineffective for stipulating to the foundation for the officer's testimony that he recognized Aguirre's voice in recorded conversations. "To state a colorable claim of ineffective assistance of counsel," Aguirre was required to "show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced [him]." See State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006), citing Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶5 "[W]e must presume 'counsel's conduct falls within the wide range of reasonable professional assistance' that 'might be considered sound trial strategy.'" State v. Denz, 232 Ariz. 441, ¶ 7, 306 P.3d 98, 101 (App. 2013), quoting Strickland, 466 U.S. at 689. Therefore, "disagreements about trial strategy will not support an ineffective assistance claim if 'the challenged conduct has some reasoned basis,' even if the tactics counsel adopts are unsuccessful." Id., quoting State v. Gerlaugh, 144 Ariz. 449, 455, 698 P.2d 694, 700 (1985).
¶6 Trial counsel stipulated that the officer's "ability to identify [Aguirre's] voice is based on his significant contact with [Aguirre] in the scope of his law enforcement duties on an unrelated case." Apparently pursuant to this stipulation, the officer testified he had spoken with Aguirre numerous times in person and over the telephone between 2007 and 2010, and identified Aguirre's voice as one heard in several recorded telephone calls.
¶7 Aguirre argues there could be no strategic basis for the stipulation because it revealed that Aguirre had been involved in another criminal matter and it "established [his] culpability" for the charged offenses because all the state would have to do to prove his guilt "was to play the recordings, and prove the substances were marijuana." Aguirre is mistaken that, absent the stipulation, the state would "not have been permitted to present evidence of [his] involvement in a prior case" to prove that it was his voice on the recordings. Rule 404(b), Ariz. R. Evid., expressly permits the admission of "[o]ther crimes, wrongs, or acts" to demonstrate identity.
To the extent Aguirre bases his argument on the language in the stipulation that the officer knew Aguirre from "an unrelated case," he has not cited anything in the record suggesting this language was read to the jury.
¶8 Aguirre further suggests, however, that such evidence might have been precluded or limited by Rule 403, Ariz. R. Evid. But he does not develop any argument supporting this claim, much less establish the evidence would have been sanitized to the same extent as the officer's testimony here—the officer testified only that he had numerous conversations with Aguirre over a period of years. Thus, Aguirre has not shown that counsel's stipulation was anything other than a valid, tactical decision. See Denz, 232 Ariz. 441, ¶ 7, 306 P.3d at 101. The trial court correctly determined that Aguirre had not made a colorable claim that counsel's performance fell below prevailing professional norms. See Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d at 68.
Aguirre asserts he is entitled to an evidentiary hearing "to establish" that counsel's decision to stipulate was "not reasoned trial strategy." This argument overlooks that we must instead presume that counsel made a valid tactical decision, and that Aguirre must identify evidence that, if taken as true, suggests counsel did not do so. See Denz, 232 Ariz. 441, ¶ 7, 306 P.3d at 101. He has not met this burden.
¶9 In any event, Aguirre does not attempt to establish resulting prejudice. See id. He identifies nothing in the record suggesting the state would have had any difficulty establishing a foundation for the officer's testimony, or any other reason counsel's refusal to stipulate could have changed the outcome of the trial. See Strickland, 466 U.S. at 694 (to establish prejudice, defendant must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different").
¶10 Although we grant review, we deny relief.