Opinion
No. 2 CA-CR 2014-0218-PR
10-08-2014
THE STATE OF ARIZONA, Respondent, v. TIMOTHY SHANE DICKEY, Petitioner.
COUNSEL M. Lando Voyles, Pinal County Attorney By Rosemary Gordon Pánuco, Appellate Bureau Chief, Florence Counsel for Respondent Timothy S. Dickey, Tucson In Propria Persona
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NOT FOR PUBLICATION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 Pinal County
No. S1100CR201102827
The Honorable Robert C. Brown, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL M. Lando Voyles, Pinal County Attorney
By Rosemary Gordon Pánuco, Appellate Bureau Chief, Florence
Counsel for Respondent
Timothy S. Dickey, Tucson
In Propria Persona
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Brammer concurred. VÁSQUEZ, 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 Timothy Dickey seeks 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). We grant review but deny relief.
¶2 After a jury trial, Dickey was convicted of possession of a dangerous drug for sale, transportation of a dangerous drug for sale, and possession of drug paraphernalia. He was sentenced to concurrent, presumptive prison terms, the longest of which is 15.75 years. We affirmed his convictions and sentences on appeal. State v. Dickey, No. 2 CA-CR 2012-0346 (memorandum decision filed Apr. 5, 2013).
¶3 Dickey sought post-conviction relief, and appointed counsel filed a notice stating she had reviewed the record but had found "no colorable claims" to raise in post-conviction proceedings. Dickey then filed a pro se petition for post-conviction relief claiming: the state "used perjured testimony throughout" his case and that his appellate counsel was ineffective in failing to raise that issue and that trial counsel was ineffective for failing to "counter" the perjury by presenting a police report; the trial court "abused it[]s discretion" because it did not order transcripts of voir dire, opening statements, and closing arguments; and counsel was ineffective in failing to call a defense witness based on his belief the case was "won." Specifically, Dickey claimed the other occupant of the pickup truck in which the drugs had been found would have testified that he did not know who owned the "radio holster" containing the drugs and that several people had access to the truck bed where the holster had been found.
¶4 The trial court summarily dismissed Dickey's petition. The court concluded that "no perjury exists" and thus that appellate counsel could not have been ineffective for failing to raise that issue and it had been unnecessary for trial counsel to present the police report. It further noted, as to Dickey's claim that the court had abused its discretion by not ordering transcripts, that appellate counsel was responsible for requesting them. Finally, it concluded that counsel had a tactical reason for declining to call the defense witness, observing that, had the jury believed that witness, it would have had to conclude either that Dickey was the owner of the drugs or "that someone would just throw a valuable amount of drugs into the back of [the witness's] pickup."
¶5 Dickey filed a motion for reconsideration repeating his claims of ineffective assistance of counsel and arguing, for the first time, that trial counsel should have filed a motion to suppress the drug evidence and Dickey's statement made to medical personnel that he had been using methamphetamine. The trial court denied the motion without comment.
¶6 On review, Dickey reurges his claims that counsel was ineffective for failing to call the other occupant of the truck as a witness and for failing to seek suppression of his statement to medical personnel, arguing he is entitled to an evidentiary hearing on those claims. Dickey is entitled to an evidentiary hearing only if he has presented a colorable claim—that is, "one that, if the allegations are true, might have changed the outcome." State v. Runningeagle, 176 Ariz. 59, 63, 859 P.2d 169, 173 (1993). And, "[t]o state a colorable claim of ineffective assistance of counsel," Dickey 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, Dickey had to 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).
¶7 But reviewing courts "indulge a strong presumption" that counsel provided effective assistance. Strickland, 466 U.S. at 689. And "[m]atters of trial strategy and tactics are committed to defense counsel's judgment." State v. Beaty, 158 Ariz. 232, 250, 762 P.2d 519, 537 (1988). Even if counsel's strategy proves unsuccessful, tactical decisions normally will not constitute ineffective assistance of counsel, State v. Farni, 112 Ariz. 132, 133, 539 P.2d 889, 890 (1975), and "'disagreements [over] trial strategy will not support a claim of ineffective assistance of counsel, provided the challenged conduct had some reasoned basis,'" State v. Vickers, 180 Ariz. 521, 526, 885 P.2d 1086, 1091 (1994), quoting State v. Nirschel, 155 Ariz. 206, 208, 745 P.2d 953, 955 (1987).
¶8 As the trial court correctly noted, calling the proposed witness could have harmed Dickey's defense. Dickey claimed below, however, that counsel had planned to call the witness but declined to do so because he believed the case had been "won." He complains on review that the court improperly "assume[d]" that counsel's reason was instead strategic, "in direct conflict with [his] assertion as to trial counsel's reasoning." But we see no conflict—as noted above, we must presume that counsel provided effective assistance. It would be entirely reasonable for counsel to have planned to call the witness but then to decide to forgo the risk of doing so based on his continuing evaluation of the case. Thus, the court did not abuse its discretion in summarily rejecting this claim.
¶9 We need not address Dickey's claim that counsel was ineffective for failing to seek suppression of his statement to medical personnel. A trial court is not required to address arguments raised for the first time in a motion for reconsideration. See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980). The claim is therefore waived on review. Cf. State v. Lopez, 223 Ariz. 238, ¶¶ 6-7, 221 P.3d 1052, 1054 (App. 2009) (claims raised for first time in Rule 32 reply waived).
¶10 For the reasons stated, although we grant review, we deny relief.