Opinion
No. 1 CA-CR 13-0157 PRPC
07-03-2014
STATE OF ARIZONA, Respondent, v. MICHAEL EMERSON CORRELL, Petitioner.
Maricopa County Attorney's Office, Phoenix By Lisa Marie Martin Counsel for Respondent Michael Emerson Correll, Florence Petitioner Pro Se
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Petition for Review from the Superior Court in Maricopa County
No. CR0000-141125
The Honorable Michael W. Kemp, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Lisa Marie Martin
Counsel for Respondent
Michael Emerson Correll, Florence
Petitioner Pro Se
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge John C. Gemmill and Judge Andrew W. Gould joined. KESSLER, Judge:
¶1 Petitioner Michael Emerson Correll petitions this Court for review from the dismissal of his petition for post-conviction relief. The Court has considered the petition for review and, for the reasons stated, grants review and denies relief.
¶2 In 1984, a jury convicted Correll of three counts of first degree murder, four counts of kidnapping and one count each of attempted first degree murder, burglary and armed robbery. The trial court sentenced Correll to death for each count of murder and life imprisonment for each of the remaining counts, with several of the life sentences running consecutively to each other. The supreme court modified one death sentence to life imprisonment but otherwise affirmed Correll's convictions and sentences. State v. Correll, 148 Ariz. 468, 478, 715 P.2d 721, 731 (1986).
¶3 Correll initiated a number of post-conviction relief proceedings in state court and habeas corpus proceedings in federal court. See Correll v. Stewart, 137 F.3d 1404 (9th Cir. 1998); Correll v. Ryan, 539 F.3d 938 (9th Cir. 2008). Correll was not able to obtain post-conviction relief in state court. However, he obtained habeas corpus relief in 2008 when the Ninth Circuit found Correll's trial counsel was ineffective during the penalty phase of his trial in the context of the two remaining death sentences. Correll, 539 F.3d at 955-56. Rather than proceed with a retrial of the penalty phase on those two counts, the State withdrew its notice that it would seek the death penalty. The trial court sentenced Correll to consecutive sentences of life imprisonment for the two counts of murder and we affirmed Correll's sentences on direct appeal. State v. Correll, 1 CA-CR 11-0188 (App. Dec. 22, 2011) (mem. decision). Correll then filed a pro se petition for post-conviction relief after his counsel found no colorable claims for relief. The trial court summarily dismissed the petition as precluded based on prior petitions, meritless, and based on conclusory statements unsupported by the record. Correll now seeks review. We have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).
¶4 We review the trial court's decision on whether a defendant has presented a colorable claim for post-conviction relief on an abuse of discretion standard. State v. Krum, 183 Ariz. 288, 293, 903 P.2d 596, 601 (1995). We may affirm the decision of a trial court on any basis supported by the record. State v. Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 809 (1987). I. Victim's Statements
¶5 The first issue on review concerns statements the victim of the attempted murder made at resentencing. When the victim addressed the court, the victim stated, "I witnessed the murder of Robin, Shawn and Debbie by Correll, and this is a fact." Correll contends this statement is newly discovered evidence. He argues the statement was "false" and/ or "perjured" and improperly influenced the trial court in its determination of the appropriate sentences to impose.
¶6 We deny relief on this issue. First, the superior court correctly determined that Correll's claim was precluded. Correll was aware of prior similar changes in the witness's testimony in 1987 and 1995 and raised this issue in his 2001 petition for post-conviction relief. The superior court denied the claim in that petition on the merits, finding it was not newly discovered evidence. It is therefore barred under Criminal Rule 32.2. Ariz. R. Crim. P. 32.2.
¶7 Second, even if it was not precluded, Correll does not explain how the victim's statement was false. His assertion is not sufficient to present a colorable claim. Moreover, the victim's subsequent statements qualified the statement at issue. He admitted he did not see the death of Debbie because the murderers left her alive at another location when they took the three other victims into the desert. The victim also admitted he only heard the shot that killed Shawn and did not see it.
It is the appellant's duty to provide evidence in support of any legal arguments made. Ariz. R. Crim. P. 31.13(c)(1)(vi), 32.5. Further, a petition for review may not merely incorporate by reference any issue or argument, but rather must set forth specific claims, present sufficient argument supported by legal authority, and include citation to the record. Id. Thus, Correll cannot incorporate by reference any portion of the record into his petition for review. See State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991); Ariz. R. Crim. P. 32.5, 32.9(c).
¶8 Third, immediately after the victim spoke, the prosecutor explained to the court that the victim's statement was not consistent with what the victim had said in the past. The prosecutor noted many years had passed since the events occurred and that "always creates difficulties with witnesses and proof[.]" The prosecutor clarified to the court that the victim had told various people at various times over the years since the trial he did not really know who actually shot him, and that while he thought it was Correll, he could not be certain. The prosecutor told the court that the victim had claimed he was certain Correll participated in the murders, but there was a question regarding whether Correll was the person who actually shot the victim.
¶9 Finally, the record shows Correll suffered no prejudice. At the time of the murders, the penalty for first-degree murder was either death or life imprisonment without possibility of parole for twenty-five years. Arizona Revised Statutes ("A.R.S.") Sections 13-703(A) (1984); State v. Wallace, 219 Ariz. 1, 8, ¶ 38, 191 P.3d 164, 171 (2008). Therefore, the trial court imposed the only available sentence. Further, the trial court explained that "the most significant reason" for why it imposed consecutive sentences was the offenses involved multiple victims. The only other factors the court considered were the "horrific nature" of the offenses and Correll's "extensive criminal history," neither of which Correll has ever denied. Therefore, the statement at issue did not influence the court in its determination of the appropriate sentences for the two counts of murder. II. Prosecutorial Misconduct
¶10 As his second issue on review, Correll contends the prosecutor engaged in misconduct when he relied on and failed to correct the victim's allegedly false statement at sentencing. We deny relief on this issue as well. First, Correll could have raised this issue on direct appeal, but failed to do so. State v. Correll, 1 CA-CR 11-0188 (App. Dec. 22, 2011) (mem. decision). Any claim a defendant raised or could have raised on direct appeal is precluded from being raised for the first time in a petition for post-conviction relief. Ariz. R. Crim. P. 32.2(a). None of the exceptions under Rule 32.2(b) apply. Ariz. R. Crim. P. 32.1(d)-(h). Additionally, the prosecutor explained to the court that the victim's statement was not consistent with other post-trial statements. This was to Correll's benefit. Thus, even if the issue was not precluded, we would deny relief because there was no prosecutorial misconduct. III. Confrontation Clause
¶11 Correll also claims the trial court denied him the right to confront the victim at sentencing. This claim is precluded because Correll did not raise it on appeal from the re-sentencing order. In any event, the right to confrontation is a trial right. Barber v. Page, 390 U.S. 719, 725 (1968); Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (plurality opinion). Therefore, Correll had no right to confront the victim at a resentencing hearing. Additionally, Correll never asked to examine the victim and never otherwise challenged the victim's statements, even though he had the opportunity to do so. See A.R.S. § 13-4426.01 (2011) (stating a defendant may explain, support or deny a victim's statement at sentencing). IV. Ineffective Counsel
¶12 Correll also argues counsel appointed to represent him on remand was ineffective. However, Correll represented himself on remand and his counsel appeared only in the capacity of advisory counsel. Ineffective assistance of advisory counsel is not a cognizable claim under Rule 32. State v. Russell, 175 Ariz. 529, 535, 858 P.2d 674, 680 (App. 1993). Therefore, we also deny relief on this issue.
¶13 Finally, Correll argues his appellate counsel was ineffective when counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967), and State v. Leon, 104 Ariz. 297, 299, 451 P.2d 878, 880 (1969), after counsel found no appealable issues. Correll argues appellate counsel should have presented issues on appeal regarding the denial of the right to confront the victim at sentencing and the alleged prosecutorial misconduct identified above. We determine that there was no right to question the victim, nor was there misconduct. Appellate counsel was not ineffective for failing to raise these issues on appeal. We deny relief on this issue. V. Conclusion
Counsel did raise various issues at Correll's request. Correll, 1 CA-CR 11-0188 at ¶ 2.
Correll filed a pro se supplemental opening brief on appeal in which he too, chose not to raise either of these issues.
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¶14 For the reasons stated above, we grant review and deny relief.