Opinion
No. 2 CA-CR 2014-0079-PR
05-21-2014
THE STATE OF ARIZONA, Respondent, v. JAN MILTON ALFONSO, Petitioner.
Brad Carlyon, Navajo County Attorney By Galen H. Wilkes, Deputy County Attorney, Holbrook Counsel for Respondent 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Navajo County
No. S0900CR20080591
The Honorable Robert J. Higgins, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Brad Carlyon, Navajo County Attorney
By Galen H. Wilkes, Deputy County Attorney, Holbrook
Counsel for Respondent
The Brewer Law Office, Show Low
By Benjamin M. Brewer
Counsel for Petitioner
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred. ECKERSTROM, Judge:
¶1 Jan Alfonso petitions this court for review of the trial court's order summarily dismissing 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 has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Alfonso has not met his burden of demonstrating such abuse here.
¶2 Alfonso pled guilty to sexual conduct with a minor under the age of fifteen and was sentenced to a 15.5-year prison term as stipulated in his plea agreement. He filed an untimely notice of and petition for post-conviction relief, claiming he had directed his trial counsel to file a petition for post-conviction relief but that counsel had not done so. He further claimed counsel had been ineffective for "fail[ure] to submit mitigation information" to the state and "file pleadings alerting the court to issues which could have impacted both plea negotiations and acceptance of the plea, as well as sentencing." Specifically, he asserted that counsel had failed to disclose to the state or trial court a psychosexual evaluation that "highlighted" several mitigating factors and had failed to inform the state that Alfonso had "a legitimate defense" to the charges—namely, that he had been unaware of the victim's age. Alfonso additionally claimed there was newly discovered evidence relating to the victim's representation of her age as well as statements impeaching a witness that purportedly would have changed the plea offer.
¶3 The trial court summarily dismissed the petition. It determined Alfonso's claim that he had been without fault for failing to timely seek relief was "defeat[ed]" because he had now been "allowed to file a delayed Rule 32 petition." The court noted the psychosexual evaluation demonstrated Alfonso had been aware of the victim's age when he had intercourse with her, and thus concluded that Alfonso had no defense based on "unawareness of the victim's age." The court further concluded that disclosure of the report would not have changed the outcome of the proceedings.
¶4 On review, Alfonso repeats his claim that trial counsel was ineffective because he did not disclose the psychosexual evaluation or that Alfonso may have had a defense based on his knowledge of the victim's age. "To state a colorable claim of ineffective assistance of counsel," Alfonso 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). To demonstrate resulting prejudice, Alfonso must show a reasonable probability that the outcome would have been different absent counsel's ineffectiveness. See State v. Nash, 143 Ariz. 392, 398, 694 P.2d 222, 228 (1985). A claim for relief is colorable, and a defendant is therefore entitled to an evidentiary hearing, when the "allegations, if true, would have changed the verdict." State v. Krum, 183 Ariz. 288, 292, 903 P.2d 596, 600 (1995).
¶5 Alfonso asserts his claim is colorable because the state did not provide "[a]n affidavit from the prosecutor" showing that the psychosexual report would not have changed the plea offer. Thus, he asserts, "[t]his was a contested issue of fact" requiring an evidentiary hearing. We disagree. Counsel's decision to not disclose a report in which his client admitted guilt is clearly a reasonable tactical decision that cannot support a claim of ineffective assistance of counsel. See State v. Meeker, 143 Ariz. 256, 260, 693 P.2d 911, 915 (1984). Additionally, the burden is on Alfonso to support his claim, and he must do more than merely speculate that he would have been prejudiced by counsel's conduct. "Proof of [counsel's] ineffectiveness must be a demonstrable reality rather than a matter of speculation." State v. McDaniel, 136 Ariz. 188, 198, 665 P.2d 70, 80 (1983); cf. State v. Donald, 198 Ariz. 406, ¶ 21, 10 P.3d 1193, 1201 (App. 2000) (to warrant evidentiary hearing, Rule 32 claim "must consist of more than conclusory assertions").
¶6 Alfonso also repeats his claim that he had a "potential defense" to the charges against him because there was evidence the victim had misrepresented her age on a social media website. He asserts that, had this information been provided to the state, he might have been given a more favorable plea offer or he would have chosen to proceed to trial. This claim fails for several reasons. First, Alfonso is incorrect that a lack of knowledge of the victim's age would constitute a statutory defense to sexual conduct with a minor under the age of fifteen. See A.R.S. § 13-1405(A); State v. Falcone, 228 Ariz. 168, ¶ 18, 264 P.3d 878, 882-83 (App. 2011). In any event, Alfonso admitted during his psychosexual evaluation that he had been aware of the victim's age before he had intercourse with her. Moreover, his claim that his purported lack of knowledge could have influenced plea negotiations is entirely speculative, and he included no affidavit asserting he would have rejected the plea had he known of a potential defense.
We cite the current version of the statute, as this provision has not changed since Alfonso committed his offense.
¶7 Alfonso next asserts the trial court erred because the order dismissing his petition had been "prepared by the state" for the court's signature. He did not raise any objection below, and has identified no legal basis for an objection in any event. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (failure to develop legal argument waives argument on appeal); State v. Ramirez, 126 Ariz. 464, 467-68, 616 P.2d 924, 927-28 (App. 1980) (appellate court will not consider on review claims not raised below); see also Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review must contain "issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review"). Indeed, such a procedure clearly is contemplated by our rules, which allow a defendant to file a reply. See Ariz. R. Crim. P. 32.5. Accordingly, we do not address this argument further.
¶8 Before filing his petition for review in this case, Alfonso requested that transcripts of his sentencing be prepared. Although that request was granted, the court reporter apparently informed the defendant that, due to computer error, no transcript existed. At a status conference, Rule 32 counsel informed the court that Alfonso might have to be resentenced due to the missing transcripts; the state took the position that it was unnecessary because Alfonso received a stipulated sentence. The record does not contain a ruling by the trial court or any motion by Alfonso requesting relief based on the missing transcript.
¶9 On review, Alfonso claims he is entitled to either withdraw from the plea or be resentenced "to ensure compliance of his rights." As we have observed, it is not clear that Alfonso requested this relief below. But, to the extent the record suggests the trial court implicitly denied a request for resentencing, Alfonso has failed to demonstrate he is entitled to relief. He cites no authority suggesting resentencing is required in these circumstances. Pursuant to Rule 31.8(f), Ariz. R. Crim. P., when transcripts are unavailable, the party seeking review may "prepare a statement of the evidence or proceedings from the best available means, including the [party's] recollection"; the statement will be included in the record upon approval by the trial court. Ariz. R. Crim. P. 31.8(f); see Ariz. R. Crim. P. 32.4(d) (specifying normal procedure for transcript preparation). Alfonso has not availed himself of this rule. Nor has he suggested there was any violation of his rights or other error at his sentencing. He therefore has not shown any reason to be resentenced. See State v. Masters, 108 Ariz. 189, 192, 494 P.2d 1319, 1322 (1972) (when transcript lost or unavailable, court will assume record supports judgment unless "at least a credible and unmet allegation of reversible error" exists); see also Ariz. Const. art. VI, § 27 ("No cause shall be reversed for technical error in pleadings or proceedings when upon the whole case it shall appear that substantial justice has been done.").
¶10 For the reasons stated, although we grant review, we deny relief.