Opinion
2 CA-CR 2024-0085-PR
09-19-2024
The State of Arizona, Respondent, v. Ryan Galal Van Dyck, Petitioner.
Laura Conover, Pima County Attorney By James W. Rappaport, J. William Brammer Jr., and Tai Summers, Deputy County Attorneys, Tucson Counsel for Respondent Apfel Law Group, Phoenix By Seth Apfel Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20143891001 The Honorable Howard Fell, Judge Pro Tempore
Laura Conover, Pima County Attorney By James W. Rappaport, J. William Brammer Jr., and Tai Summers, Deputy County Attorneys, Tucson Counsel for Respondent
Apfel Law Group, Phoenix By Seth Apfel Counsel for Petitioner
Presiding Judge Sklar authored the decision of the Court, in which Vice Chief Judge Eppich and Judge Brearcliffe concurred.
MEMORANDUM DECISION
SKLAR, Presiding Judge:
¶ 1 Petitioner Ryan Van Dyck seeks review of the trial court's ruling summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. We will not disturb that ruling unless the court abused its discretion. State v. Bennett, 213 Ariz. 562, ¶ 17 (2006). Van Dyck has not met his burden of establishing such abuse here.
FACTUAL AND PROCEDURAL BACKGROUND
¶ 2 After a bench trial, Van Dyck was convicted of twenty counts of sexual exploitation of a minor under fifteen based on evidence collected in an investigation prompted by a report from America Online, Inc. (AOL) to the National Center for Missing and Exploited Children. The trial court sentenced Van Dyck to consecutive prison terms totaling 200 years. We affirmed his convictions and sentences on appeal. State v. Van Dyck, No. 2 CA-CR 2019-0156 (Ariz. App. Sept. 2, 2021) (mem. decision). The Arizona Supreme Court denied Van Dyck's petition for review. State v. Van Dyck, No. CR-21-0330-PR (Ariz. Aug. 25, 2022) (order).
¶ 3 Concurrently with the state's prosecution, Van Dyck was charged in federal court based on evidence arising from the same investigation. The district court denied Van Dyck's motion challenging the same search warrant at issue in the state's case. It ultimately convicted him-also after a bench trial-of conspiracy to produce child pornography and possession of child pornography. The Ninth Circuit Court of Appeals affirmed, and the United States Supreme Court denied Van Dyck's petition for certiorari. In October 2021, Van Dyck sought relief from his federal sentences, claiming ineffective assistance of both trial and appellate counsel. The district court rejected those claims and denied Van Dyck's petition, and the Ninth Circuit affirmed.
¶ 4 In November 2022, Van Dyck initiated in state court a proceeding for post-conviction relief, asserting ineffective assistance of both trial and appellate counsel. In April 2024, the trial court summarily denied Van Dyck's petition. In short, the court found that Van Dyck had "received effective assistance" of both trial and appellate counsel. This petition for review followed.
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
¶ 5 On review, Van Dyck first contends the trial court erred in rejecting his claims that his appellate counsel had performed deficiently. To state a colorable claim of ineffective assistance, a petitioner must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the petitioner. Bennett, 213 Ariz. 562, ¶ 21 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." Id.
I. Failure to challenge voluntariness of jury trial waiver
¶ 6 Van Dyck first challenges the trial court's rejection of his claim that appellate counsel had provided deficient performance by failing to raise the "structural error issue" of whether Van Dyck's jury trial waiver had been voluntary. The court concluded that Van Dyck had "knowingly, intelligently, and voluntarily . . . waived a right to jury trial in compliance with . . . Rule 18.1" of the Arizona Rules of Criminal Procedure. This conclusion is supported by the record.
¶ 7 Van Dyck relies heavily on State v. MacHardy, 254 Ariz. 231, ¶¶ 17, 19-27 (App. 2022). There, we found compliance with Rule 18.1(b)'s requirements based on an equivalent waiver form, an in-person colloquy, and the defendant's verbal confirmation on the record in open court of both the decision and willingness to waive jury trial. Both before the trial court and on review, Van Dyck has repeatedly cited the dissenting opinion in MacHardy in support of his claim that the trial court failed to adequately determine the voluntariness of his waiver. But the majority in MacHardyrejected the dissent's position that a particular voluntariness inquiry is necessary. 254 Ariz. 231, ¶¶ 23-27. Our supreme court also denied review. As such, the court did not abuse its discretion in concluding that Van Dyck had failed to establish a colorable claim for ineffective assistance based on his counsel's decision not to raise the voluntariness issue on direct appeal. See Bennett, 213 Ariz. 562, ¶ 17.
II. Failure to develop argument concerning warrantless opening of email attachment
¶ 8 Van Dyck also challenges the trial court's rejection of his claims that appellate counsel had provided deficient representation by failing to: (a) adequately develop a "strong, preserved argument" regarding the warrantless opening of an AOL email attachment; and (b) properly raise a preserved argument based on Franks v. Delaware, 438 U.S. 154 (1978) regarding a warrant extension request, which he claims contained false information. As Van Dyck notes, the court did not expressly address the substance of these claims. Nevertheless, we must deny relief if the court's ruling was legally correct for any reason. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015).
¶ 9 Although Van Dyck's counsel raised the email attachment claim on direct appeal, we deemed the issue waived for failure to adequately develop the argument. Van Dyck, No. 2 CA-CR 2019-0156, ¶¶ 10-12. Van Dyck urges that this failure constituted deficient performance particularly because the issue had been "fully developed" in trial counsel's supplemental motion to suppress and "in a federal Ninth Circuit brief provided to appellate counsel."
¶ 10 But even had counsel adequately developed the argument on direct appeal, such efforts could not reasonably have resulted in reversal. See Bennett, 213 Ariz. 562, ¶ 25 (to establish colorable claim for ineffective assistance, petitioner must demonstrate prejudice by showing "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" (quoting Strickland, 466 U.S. at 694)). As the trial court explained in denying the supplemental motion to suppress, Van Dyck had not maintained a reasonable expectation of privacy in the email attachment he sent. That attachment violated AOL's terms of service and privacy policy, which expressly prohibited the sending of such attachments. The policy also notified all users that AOL monitored their accounts and would disclose suspected illegal activity to law enforcement.
¶ 11 The federal district court reached the same conclusion in rejecting Van Dyck's analogous ineffective-assistance claim, and the Ninth Circuit Court of Appeals affirmed. VanDyck v. United States, No. CV-21-00399-TUC-CKJ, at *6-12, 2022 WL 17689168 (D. Ariz. Dec. 15, 2022) (order), aff'd No. 23-15198, 2024 WL 1477398 (9th Cir. Apr. 5, 2024) (mem.). See U.S.Ct. of App. 9th Cir. R. 36-3(a), (b); Ariz. R. Sup. Ct. 111(c)(1)(C), (d); Ariz. R. Crim. P. 31.19(e). With both federal courts having confirmed the trial court's own earlier conclusion that law enforcement's opening of the email attachment forwarded by AOL involved no constitutional violation, the court did not abuse its discretion in implicitly finding that Van Dyck had failed to establish a colorable claim of ineffective assistance of appellate counsel based on her waiver of this argument. See Bennett, 213 Ariz. 562, ¶ 17.
III. Failure to adequately develop argument concerning warrant extension
¶ 12 Appellate counsel also raised Van Dyck's Franks claim regarding the warrant extension request on direct appeal. But we deemed the issue waived due to counsel's reliance on information not provided to the trial court and her failure to argue fundamental error. Van Dyck, No. 2 CA-CR 2019-0156, ¶¶ 18-19 &n.3. As with the AOL attachment issue, Van Dyck's arguments challenging the warrant extension request on Franks grounds have repeatedly been rejected in federal court. In fact, both the district court and the Ninth Circuit Court of Appeals described his related claims of ineffective assistance of appellate counsel as "frivolous." United States v. VanDyck, No. CR 15-742-TUC-CKJ, 2016 WL 2909870, at *6 (D. Ariz. May 19, 2016); VanDyck, 2022 WL 17689168, at *12-13; Van Dyck, 2024 WL 1477398, at *2 (concluding "[r]easonable jurists would not find debatable" district court's conclusion that Van Dyck's claim of ineffective assistance of appellate counsel based on Franks-based challenge to warrant extension request "was frivolous" and declining to issue certificate of appealability as to said claim). Van Dyck fails to acknowledge, much less distinguish, these rulings.
¶ 13 We therefore conclude that Van Dyck has not demonstrated a reasonable probability that, had counsel properly presented the warrant extension argument on direct appeal, the result of that proceeding would have been different than the repeated rejection of an analogous claim in federal court. See Bennett, 213 Ariz. 562, ¶ 25. As such, the trial court did not abuse its discretion in implicitly rejecting this aspect of Van Dyck's petition for post-conviction relief. See id. ¶ 17.
III. Failure to raise Franks issue
¶ 14 Finally, Van Dyck argues that the trial court erred in rejecting his claim that counsel had provided deficient performance by fully failing to raise on direct appeal a preserved Franks issue. That issue concerned the affidavits submitted in support of the original search warrant. As the court explained, "[A]ppellate counsel's decision to raise or not raise certain issues," including the lawfulness of a search warrant, "does not meet the standard of ineffectiveness of counsel." Counsel is not required to "raise every possible or even meritorious issue on appeal." State v. Herrera, 183 Ariz. 642, 647 (App. 1995). Rather, "[t]he 'process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.'" Id. (quoting Smith v. Murray, 477 U.S. 527, 536 (1986)).
¶ 15 Thus, in the absence of evidence that exclusion of a certain issue fell below prevailing professional norms and changed the outcome of the appeal, appellate counsel "is not ineffective for selecting some issues and rejecting others." Id. Likewise, reasonably waived issues "cannot be resurrected in post-conviction proceedings." Id. Here, by the time Van Dyck's counsel was presenting his direct appeal to this court, the federal district court had, in denying his motion to suppress, already expressly addressed and rejected a Franks claim based on many of the same allegedly false statements in the same search warrant affidavit. VanDyck, 2016 WL 2909870, at *5-6. The trial court did not abuse its discretion in concluding that appellate counsel had not been deficient by reasonably choosing not to raise the already-rejected constitutional issue on direct appeal and focusing instead on other issues. See Bennett, 213 Ariz. 562, ¶ 17.
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
¶ 16 Van Dyck also contends that the trial court erred in rejecting his claims that trial counsel had provided ineffective assistance by "failing to consult with an expert, failing to view the evidence, and failing to raise an unlawful arrest." The court rejected as conclusory and speculative Van Dyck's argument that his trial counsel consulting with an expert might have changed the outcome of the case. In fact, neither before the trial court nor on review has Van Dyck provided evidentiary support for the assertion underlying this argument: that his trial counsel had entirely failed to consult with any expert regarding the electronic devices, images, videos, or forensic report at issue in this case. Nor has he provided any evidence of what such a consultation might have shown, instead offering only speculation that a forensic expert may have been able to challenge the state's evidence after reviewing the state's forensic reports or independently examining the devices in question "to determine whether [the charged] images/videos depict real children or ha[d] been altered/enhanced."
¶ 17 To warrant an evidentiary hearing, a Rule 32 claim "must consist of more than conclusory assertions and be supported by more than regret." State v. Donald, 198 Ariz. 406, ¶ 21 (App. 2000); see also State v. Berryman, 178 Ariz. 617, 621 (App. 1994) ("Proof of counsel's ineffectiveness must be a demonstrable reality and not mere speculation."). Thus, the trial court did not abuse its discretion in rejecting this claim for post-conviction relief. See Bennett, 213 Ariz. 562, ¶ 17.
¶ 18 The trial court did not expressly address Van Dyck's claim that his trial counsel had provided ineffective assistance by failing to independently view the images and videos underlying the charges against him. But even assuming, arguendo, that this failure could have rendered counsel's performance deficient, Van Dyck has failed to establish prejudice. See id. ¶ 25. Seven of the charged files involved known child victims. And, as the trial court noted in denying Van Dyck's petition for post-conviction relief, it personally "viewed all 20 of the charged exploitive files" before expressly finding at sentencing that all of the counts involved sexual exploitation of a minor under fifteen, a dangerous crime against children. See MacHardy, 254 Ariz. 231, ¶¶ 34-36, 40 (trial court may determine actual children involved in exploitive images based on testimony of law enforcement and court's own review of images, without expert testimony). The court's ruling implicitly rejecting this claim of ineffective assistance of trial counsel was therefore legally correct. See Roseberry, 237 Ariz. 507, ¶ 7.
¶ 19 Finally, Van Dyck contends the trial court abused its discretion in rejecting the claim that his trial counsel had been deficient for failing to seek suppression of incriminating statements made after his arrest. The court correctly reasoned that "suppression of evidence goes to trial strategy and does not meet the standard of ineffective assistance of counsel as it would be speculative regarding how the trial court would have ruled but for a certain motion." See State v. Nirschel, 155 Ariz. 206, 208 (1987) ("decision whether to seek a motion to suppress items of evidence is a matter of trial strategy," and "well established in Arizona that disagreements in trial strategy will not support a claim of ineffective assistance of counsel"). Moreover, Van Dyck has failed-both before the trial court and on review-to cite any specific authority to support his assertions that his statements were unlawfully obtained or that suppression was required. See State v. Digeno, 251 Ariz. 549, ¶ 13 (App. 2021); see also Ariz. R. Crim. P. 32.7(b) (petition for post-conviction relief must contain citations to "relevant legal authorities"), 32.16(c)(2)(D) (in providing reasons appellate court should grant relief, petition for review must provide "citations to supporting legal authority"). For both of these reasons, the trial court properly rejected this final claim of ineffective assistance.
CONCLUSION
¶ 20 Accordingly, we grant review but deny relief.