Opinion
No. 2 CA-CR 2017-0401-PR
03-26-2018
THE STATE OF ARIZONA, Respondent, v. ELLEN RUTH DICKEY, Petitioner.
COUNSEL John William Lovell, Tucson 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NOT FOR PUBLICATION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 Mohave County
No. CR201400664
The Honorable Steven F. Conn, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL John William Lovell, Tucson
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 Ellen Dickey seeks review of the trial court's order summarily dismissing her petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Dickey has not shown such abuse here.
¶2 After a jury trial, Dickey was convicted of possession of dangerous drugs for sale, possession of drug paraphernalia, and two counts of misconduct involving weapons—one for possessing a firearm as a prohibited possessor and the other for possessing a firearm during commission of a felony drug offense. She was sentenced to a nine-year prison term for possession of dangerous drugs for sale and a concurrent, 2.5-year prison term for possession of drug paraphernalia. The trial court ordered that her 3.5-year prison term for possession of a weapon during a felony drug transaction also be served concurrently to the nine-year term, but that the 3.5-year term for possession of a firearm by a prohibited possessor be consecutive to that term. We affirmed her convictions and sentences on appeal. State v. Dickey, No. 1 CA-CR 15-0189 (Ariz. App. Apr. 19, 2016) (mem. decision).
¶3 Dickey sought post-conviction relief, arguing her trial counsel had been ineffective in failing to elicit testimony from a detective about text messages and voicemails that purportedly supported a codefendant's testimony that Dickey had communicated with him and other codefendants about "car repairs and car parts," not drug transactions. She also asserted trial and appellate counsel were ineffective for failing to assert her consecutive sentence for weapons possession during a drug offense and weapons possession by a prohibited possessor violated A.R.S. § 13-116 because they were based on the same guns. The trial court summarily denied relief, and this petition for review followed.
¶4 On review, Dickey repeats her claims of ineffective assistance. To prevail, she "was required to demonstrate that counsel's conduct fell below prevailing professional norms and that [s]he was prejudiced thereby." State v. Denz, 232 Ariz. 441, ¶ 6 (App. 2013), citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984). There is "[a] strong presumption" that counsel "provided effective assistance," State v. Febles, 210 Ariz. 589, ¶ 20 (App. 2005), which Dickey must overcome by providing evidence that counsel's conduct did not comport with prevailing professional norms, see State v. Herrera, 183 Ariz. 642, 647 (App. 1995). Moreover, tactical or strategic decisions rest with counsel, State v. Lee, 142 Ariz. 210, 215 (1984), and we will presume "that the challenged action was sound trial strategy under the circumstances," State v. Stone, 151 Ariz. 455, 461 (App. 1986). Thus, "[d]isagreements as to trial strategy or errors in trial [tactics] will not support a claim of ineffective assistance of counsel as long as the challenged conduct could have some reasoned basis." State v. Meeker, 143 Ariz. 256, 260 (1984).
¶5 Dickey first asserts she is entitled to relief on her claim that trial counsel was ineffective for failing to elicit the text-message evidence. The trial court rejected this claim on the ground that Dickey had not demonstrated the evidence would have altered the jury's verdicts. Even if we disagreed with that conclusion, we additionally observe that Dickey has made no effort to demonstrate that counsel's conduct fell below prevailing professional norms. Decisions about what evidence to present are plainly tactical. See Lee, 142 Ariz. at 215. Thus, to obtain relief, Dickey must show that counsel's tactical decision could have had no reasoned basis. See Meeker, 143 Ariz. at 260. Because she has not done so, this claim of ineffective assistance fails.
Dickey does not assert that she had made a colorable claim of ineffective assistance entitling her to an evidentiary hearing, only that she is entitled to a new trial. See generally State v. Amaral, 239 Ariz. 217, ¶ 10 (2016).
¶6 Dickey next reasserts her claim that trial and appellate counsel were ineffective in failing to argue that the consecutive sentence imposed for her conviction of possession of a firearm by a prohibited possessor violated § 13-116. "Under § 13-116, a trial court may not impose consecutive sentences for the same act." State v. Urquidez, 213 Ariz. 50, ¶ 6 (App. 2006). To determine whether the defendant's conduct constitutes a single act:
First, we must decide which of the two crimes is the "ultimate charge—the one that is at the essence of the factual nexus and that will often be the most serious of the charges." Then, we "subtract[] from the factual transaction the evidence necessary to convict on the ultimate charge." If the remaining evidence satisfies the elements of the secondary crime, the crimes may constitute multiple acts and consecutive sentences would be permissible. We also consider whether "it was factually impossible to commit the ultimate crime without also committing the secondary crime." Finally, we consider whether the defendant's conduct in committing the lesser crime "caused the victim to suffer a risk of harm different from or additional to that inherent in the ultimate crime."Id. ¶ 7, quoting State v. Gordon, 161 Ariz. 308, 315 (1989) (alteration in Urquidez) (internal citations omitted).
¶7 Although our reasoning differs, we agree with the trial court that consecutive prison terms were permitted and, thus, counsel was not ineffective for failing to raise this issue. As the court correctly noted, Dickey's conviction for weapons possession as a prohibited possessor had no elements in common with her conviction of possession of dangerous drugs for sale and were not based on the same conduct. See A.R.S. §§ 13-3102(A)(4), 13-3407(A)(2). Thus, there was no barrier to the imposition of consecutive sentences as to those counts. But, as Dickey points out, that does not alter the fact that her two sentences for weapons misconduct are also consecutive and must therefore constitute separate acts as contemplated by § 13-116. The trial court did not address this issue.
¶8 Had Dickey possessed only one weapon, consecutive sentences may not have been permitted absent evidence she had possessed that weapon before obtaining the drugs that formed the basis for her possession conviction and, therefore, formed the basis for her conviction for possessing a weapon during a felony drug offense. See Urquidez, 213 Ariz. 50, ¶ 7; see also § 13-3102(A)(4), (8). But Dickey possessed three guns, only one of which was required to establish her guilt of possession of a weapon during a drug offense. Possession of either of the remaining weapons supports her conviction for possession of a weapon by a prohibited possessor and is entirely independent of her possession of a different weapon forming the basis of her other conviction under § 13-3102. Consecutive sentences were therefore permitted. See § 13-116; Urquidez, 213 Ariz. 50, ¶ 7.
The state argued in closing that Dickey had possessed the three guns found in a travel trailer during the search leading to her arrest. Dickey's defense was that she did not possess any of the contraband in the trailer because she did not live there and was only an occasional visitor. She has not suggested in her petition below or on review that she possessed only one firearm, which served as the basis for both convictions. Nor has she argued the charges were duplicitous because they alleged only that she had committed each count of weapons misconduct by possessing "a deadly weapon" but the state had introduced evidence at trial that she possessed several weapons. See State v. Paredes-Solano, 223 Ariz. 284, ¶ 4 (App. 2009) ("A duplicitous charge exists '[w]hen the text of an indictment refers only to one criminal act, but multiple alleged criminal acts are introduced to prove the charge.'"), quoting State v. Klokic, 219 Ariz. 241, ¶ 12 (App. 2008).
¶9 We grant review but deny relief.