Opinion
1 CA-CR 21-0279 PRPC
03-08-2022
STATE OF ARIZONA, Respondent, v. MICHAEL ANTHONY GARCIA, Petitioner.
Maricopa County Attorney's Office, Phoenix By Robert E. Prather Counsel for Respondent Michael Anthony Garcia, San Luis Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR2015-125585-001 The Honorable Jay Ryan Adleman, Judge
Maricopa County Attorney's Office, Phoenix
By Robert E. Prather
Counsel for Respondent
Michael Anthony Garcia, San Luis
Petitioner
Chief Judge Kent E. Cattani delivered the decision of the Court, in which Acting Presiding Judge Samuel A. Thumma and Judge Paul J. McMurdie joined.
MEMORANDUM DECISION
CATTANI, CHIEF JUDGE:
¶1 Michael Anthony Garcia seeks review of the superior court's ruling summarily dismissing his petition for post-conviction relief. For reasons that follow, we conclude that Garcia stated a colorable claim of ineffective assistance of trial counsel related to the value of the stolen property. Accordingly, we grant review and grant relief in part by reversing the dismissal and remanding for further proceedings on that issue.
¶2 In mid-2015, Garcia took his stepmother's three-year-old computer without her permission and pawned it several days later. The State charged him with second-degree trafficking in stolen property, a class 3 felony, and theft of property worth at least $2,000 but less than $3,000, a class 5 felony. A jury found him guilty of trafficking as charged and theft of property worth at least $1,000 but less than $2,000, a class 6 felony. The superior court sentenced him as a category three repetitive offender to concurrent terms of 11.25 years' and 3.75 years' imprisonment, respectively. This court affirmed the convictions and sentences on appeal. State v. Garcia, 1 CA-CR 18-0386, 2019 WL 2593850 (Ariz. App. June 25, 2019) (mem. decision).
¶3 Garcia then initiated Rule 32 proceedings for post-conviction relief. In his petition, Garcia raised claims of (1) ineffective assistance of trial counsel based on lack of communication, failure to investigate, and deficient pretrial and trial performance; (2) various constitutional violations; (3) newly discovered evidence; and (4) ineffective assistance of appellate counsel. In support of several arguments, Garcia asserted that the value of the stolen computer had been overstated, and he offered an investigator's report supporting a lesser value. The superior court concluded that Garcia had failed to state a colorable claim for relief and dismissed the petition without a hearing. The court summarily denied Garcia's subsequent motion for rehearing, and this petition for review followed.
¶4 We review the superior court's summary dismissal of a petition for post-conviction relief for an abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006). Summary dismissal is appropriate if no claim "presents a material issue of fact or law that would entitle the defendant to relief." Ariz. R. Crim. P. 32.11(a). Conversely, the defendant is generally entitled to an evidentiary hearing if the petition presents a colorable claim for relief-that is, one that, if the allegations are true, would probably have changed the outcome. State v. Amaral, 239 Ariz. 217, 220, ¶ 11 (2016). To state a colorable claim of ineffective assistance of counsel, the petition must show that counsel's performance fell below objectively reasonable standards and that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
¶5 Although we largely concur with the superior court's assessment of Garcia's petition, we conclude that Garcia presented a colorable claim of ineffective assistance of trial counsel related to the value of the stolen computer. The value of the stolen property determines the classification of a theft offense. See A.R.S. § 13-1802(G). As relevant here, theft is a class 5 felony if the stolen property's value was at least $2,000 but less than $3,000; a class 6 felony if the stolen property's value was at least $1,000 but less than $2,000; or a class 1 misdemeanor if the stolen property's value was less than $1,000. A.R.S. § 13-1802(G). For these purposes, value is defined as fair market value at the time of the theft. A.R.S. § 13-1801(A)(15).
¶6 Garcia's petition alleged that the State overstated the value of the computer both by relying on an inflated purchase price and by erroneously equating fair market value at the time of theft with the original purchase price, and he asserted that his trial counsel failed to develop or present evidence or offer argument countering that inflated value. He attached an investigator's affidavit stating that (1) the way the victim financed the purchase resulted in her paying more than the retail price initially, (2) at the time of the theft, the retail price of the same type of computer would have been approximately $1,200, and (3) after three years, the fair market value would have decreased to around $800.
¶7 The indictment here alleged that the stolen computer was worth at least $2,000, making the theft a class 5 felony. At trial, the State presented evidence that the victim paid $2,182.18 to purchase the computer. Although the receipt showed that the victim financed the purchase through payroll deductions, defense counsel did not challenge whether the amount paid reflected the actual retail price (without adjusting for financing) at the time of purchase. Defense counsel did, however, elicit a concession from the victim that the value of the computer would have depreciated over the three years since she purchased it, as well as agreement that she had estimated its value at the time of theft as around $1,200 or $1,300. Additionally, defense counsel elicited testimony from the pawnshop manager that he would have listed the computer for sale for around $800.
¶8 After the court correctly instructed the jury that "value" meant the computer's fair market value at the time of the theft, the prosecutor incorrectly argued in closing that the jury should find the original purchase price to be the computer's value. Defense counsel did not mention the computer's value in closing argument. The jury then returned a verdict finding the value of the computer to have been at least $1,000 but less than $2,000, making the theft a class 6 felony. See A.R.S. § 13-1802(G).
¶9 Considering the trial record as a whole, see State v. Lemieux, 137 Ariz. 143, 146 (App. 1983), Garcia stated a colorable claim of ineffective assistance of trial counsel. Although the victim's testimony that she paid over $2,000 for the computer was relevant and admissible, see, e.g., State v. Rushing, 156 Ariz. 1, 4 (1988); State v. Ellis, 172 Ariz. 549, 551 (App. 1992), Garcia's claim alleged that counsel could have presented evidence that the purchase price was inflated because of the victim's method of financing the transaction. Granted, the jury-rightly-did not accept the prosecutor's argument that the fair market value at the time of the theft was equivalent to the purchase price. See, e.g., Ellis, 172 Ariz. at 551 (noting that fair market value may be calculated from the original purchase price, but also considering the age and condition of the property). But evidence that the original price was not the fair market value even at the time of purchase would have driven down the upper bound from which the jury calculated the fair market value at the time of theft. And in conjunction with evidence (as Garcia's investigator found) that the same computer would retail for only $1,200 at the time of the theft, which suggests that a three-year-old used version would be worth even less, the jury would have had a much more robust basis to find the value to be less than $1,000-into misdemeanor rather than felony range. See A.R.S. § 13-1802(G). To be sure, counsel's alternative trial strategy focusing on lack of criminal intent may have been a viable tactical decision. But at this stage, Garcia's assertion that counsel should have (at least as an alternative) developed evidence and argued that the computer's value was in misdemeanor range states a colorable claim, regardless whether the theft conviction changed the overall sentence imposed. See Sibron v. New York, 392 U.S. 40, 55-56 (1968) (holding that a wrongful felony conviction may have continuing collateral consequences).
¶10 Accordingly, we grant review and grant relief in part by reversing the dismissal and remanding for further proceedings on the ineffective assistance of counsel argument described above. In all other respects, we deny relief.