Opinion
2 CA-CR 2022-0156-PR
12-13-2022
The State of Arizona, Respondent, v. Alexander Napier Florence, Petitioner.
Rachel Mitchell, Maricopa County Attorney By Daniel Strange, Deputy County Attorney, Phoenix Counsel for Respondent Alexander Napier Florence, Florence In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR2017111034001DT The Honorable Kathleen Mead, Judge
Rachel Mitchell, Maricopa County Attorney By Daniel Strange, Deputy County Attorney, Phoenix Counsel for Respondent
Alexander Napier Florence, Florence In Propria Persona 1
Presiding Judge Eckerstrom authored the decision of the Court, in which Chief Judge Vásquez and Judge Cattani concurred.
MEMORANDUM DECISION
ECKERSTROM, PRESIDING JUDGE
¶1 Petitioner Alexander Florence seeks review of the trial court's order dismissing his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007). Florence has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Florence was convicted of possession of narcotic drugs, possession of drug paraphernalia, and possession of marijuana. The trial court sentenced him to concurrent prison terms, the longest of which was 6.5 years. His convictions and sentences were affirmed on appeal. State v. Florence, No. 1 CA-CR 18-0513 (Ariz. App. Dec. 19, 2019) (mem. decision).
¶3 Florence thereafter sought post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record and could "find no meritorious grounds" for relief. In a supplemental, pro se petition, however, Florence argued the trial court had erred in denying his motion to suppress. In addition, he asserted a claim of newly discovered evidence relating to the motion, specifically the settlement of a civil rights complaint against one of the investigating officers, a letter from a witness to his arrest, and evidence in the transcript of the evidentiary hearing on his motion to suppress. In his reply to the state's response to his petition, Florence also maintained appellate counsel had been ineffective in failing to challenge the ruling on the motion to suppress. The trial court summarily denied relief.
¶4 On review, Florence again asserts the trial court erred in denying his motion to suppress and claims appellate counsel was ineffective. As the trial court determined, Florence's claim of error in regard to his motion to suppress is precluded because it was not raised on direct appeal. See Ariz. R. Crim. P. 32.1(a), Ariz. R. Crim. P. 32.2(a)(3). Although he asserted related claims of newly discovered evidence below, he did not develop any such arguments on review, and they are therefore waived. See 2 Ariz. R. Crim. P. 32.16(c)(2)(D); State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (defendant waived claim when he did not "develop the argument in any meaningful way" on review); State v. Rodriguez, 227 Ariz. 58, n.4 (App. 2010) (declining to address argument not raised in petition for review).
¶5 Florence also contends the trial court abused its discretion in deeming his claim of ineffective assistance of appellate counsel waived because it was raised for the first time in his reply. But, a trial court does not abuse its discretion by refusing to consider claims raised for the first time in a reply. State v. Lopez, 223 Ariz. 238, ¶¶ 5-7 (App. 2009); cf. State v. Cannon, 148 Ariz. 72, 79 ("[An appellate court] can disregard substantive issues raised for the first time in the reply brief."); State v. Ruggiero, 211 Ariz. 262, n.2 (App. 2005) (issues first raised in reply brief generally waived).
¶6 Florence argues that he raised the claim in response to the state's having asserted the suppression claim was precluded, and the trial court should therefore have considered it because it was responsive to an argument made by the state. This argument miscomprehends the scope of a reply and the nature of a claim of ineffective assistance of counsel. Form 25, Ariz. R. Crim. P., requires a post-conviction petitioner to include in his or her petition "every ground for relief you are aware of and that has not been raised and decided previously." See Ariz. R. Crim. P. 32.7(b) (petition for post-conviction relief should contain information in Form 25). It further cautions, "If you do not raise such a ground now, you may not be able to raise it later." Ariz. R. Crim. P., Form 25.
¶7 In regard to issues to be raised on appeal, "appellate counsel's waiver of other possible issues binds the defendant, and those waived issues cannot be resurrected in post-conviction proceedings." State v. Herrera, 183 Ariz. 642, 647 (App. 1995) (citing State v. Alford, 157 Ariz. 101, 102-03 (App. 1988); see also Stewart v. Smith, 202 Ariz. 446, ¶¶ 8-9 (2002) (noting exception to preclusion for claims requiring personal waiver). Thus, a claim of ineffective assistance of counsel is a discrete ground for relief based on a "violation of the United States or Arizona constitutions," Ariz. R. Crim. P. 32.1(a), and not a rebuttal or defense to preclusion. See Stewart, 202 Ariz. 446, ¶ 8. As such it must, as directed in Form 25, be included in the defendant's petition and may be waived if raised in reply. We therefore cannot say the trial court abused its discretion in deeming this claim waived and in otherwise denying relief.
¶8 We grant the petition for review, but deny relief. 3