Opinion
No. 2 CA-CR 2019-0022-PR
04-08-2019
THE STATE OF ARIZONA, Respondent, v. NAJIB M. ALGHAITHI, Petitioner.
COUNSEL 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NOT FOR PUBLICATION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. 31.19(e).
Petition for Review from the Superior Court in Pima County
No. CR20173435001
The Honorable Deborah Bernini, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Barton & Storts P.C., Tucson
By Brick P. Storts III
Counsel for Petitioner
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.
VÁSQUEZ, Judge:
¶1 Najib Alghaithi seeks review of the trial court's orders summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., and denying his subsequent motion for reconsideration. We will not disturb those orders unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Alghaithi has not shown such abuse here.
¶2 Alghaithi pled guilty to child abuse with a likelihood of death or serious physical injury and aggravated assault with a deadly weapon or dangerous instrument, both domestic violence offenses. The trial court sentenced him to an aggravated, ten-year prison term for child abuse and, for aggravated assault, suspended the imposition of sentence and placed Alghaithi on a consecutive, five-year probation term.
¶3 Alghaithi sought post-conviction relief, arguing his trial counsel had been ineffective at sentencing for: (1) requesting a mitigated sentence in light of the state's request for an aggravated term; (2) failing to "explain the relevance of [Alghaithi]'s family situation and the nature of the culture he and his wife had been raised and lived in all their lives," particularly in light of statements made by his wife, the assault victim; (3) providing incorrect facts in a presentence memorandum that he later corrected at sentencing; (4) providing a letter from Alghaithi's son that was "devastating" to his position at sentencing; and (5) ineffectively arguing for leniency. The trial court summarily dismissed the proceeding and denied Alghaithi's motion for reconsideration. This petition for review followed.
¶4 On review, Alghaithi asserts that he has made a colorable claim of ineffective assistance and is entitled to an evidentiary hearing. A defendant is entitled to a hearing if he presents a colorable claim for relief, that is, "he has alleged facts which, if true, would probably have changed the verdict or sentence." State v. Amaral, 239 Ariz. 217, ¶¶ 10-11 (2016). "To state a colorable claim of ineffective assistance of counsel, a defendant must
show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006); see also Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶5 Alghaithi's petition for review, in large part, simply repeats the claims he made below. Critically, he does not address the trial court's conclusion that it would have imposed the same prison term even had counsel performed as Alghaithi believes he should have. And, Alghaithi has not asserted the sentence imposed was outside the court's discretion. Thus, even if we agreed he had made a colorable claim that counsel fell below prevailing professional norms, he has not demonstrated resulting prejudice. See Amaral, 239 Ariz. 217, ¶ 11. His claim that counsel was ineffective at sentencing therefore fails. See id.
¶6 Alghaithi additionally asserts he raised a claim below that counsel had been ineffective because he caused Alghaithi to lose presentence incarceration credit by allowing him to be released on bond, after which he was immediately taken into federal custody for violating release conditions imposed in an ongoing federal proceeding, and then failing to promptly exonerate that bond. But, although Alghaithi identified some relevant facts in his petition for post-conviction relief, that petition cannot reasonably be read as raising a distinct claim of ineffective assistance based on this conduct. And, despite mentioning the claim in his motion for rehearing, Alghaithi did not below and has not on review developed any argument that counsel fell below prevailing professional norms, nor has he identified any appropriate remedy. Accordingly, we do not address this argument further. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (insufficient argument waives claim on review).
¶7 We grant review but deny relief.