Opinion
No. 2 CA-CR 2014-0287-PR
12-02-2014
THE STATE OF ARIZONA, Respondent, v. LINDA DARLENE GILES, Petitioner.
COUNSEL Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent Linda D. Giles, Goodyear 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NOT FOR PUBLICATION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 Pima County
No. CR20064485
The Honorable Jeffrey T. Bergin, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent
Linda D. Giles, Goodyear
In Propria Persona
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Judge Howard and Judge Espinosa concurred. ECKERSTROM, Chief Judge:
¶1 Linda Giles petitions this court for review of the trial court's dismissal of her 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. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We find no such abuse here.
¶2 After a jury trial, Giles was convicted of manslaughter arising from a 2006 incident in which she ran over the victim with a truck in their driveway. The trial court sentenced her to a presumptive, 10.5-year prison term. We affirmed the conviction and sentence on appeal. State v. Giles, No. 2 CA-CR 2009-0159 (memorandum decision filed Feb. 12, 2010). Giles then sought post-conviction relief, arguing trial counsel had been ineffective. Following an evidentiary hearing, the court dismissed that petition, and this petition for review followed.
Giles filed a pro se notice of post-conviction relief in February 2010, providing no grounds for relief. In January 2013, appointed counsel filed a "Supplemental Memorandum in Support of Petition for Post-Conviction Relief," which the trial court treated as a petition for post-conviction relief.
¶3 In her pro se petition for review, Giles argues trial counsel was ineffective by failing to ensure that a subpoena was issued for K.B., an individual who was with Giles and the victim on the night of the accident. At the evidentiary hearing, K.B. testified he had not known when Giles's trial was scheduled to occur and he had not planned to testify at the trial. He also testified "it was very hard to see" in the area where the accident had occurred, information Giles argued was necessary to prove she had been unable to see the victim when she struck him with the truck. In order to state a colorable claim of ineffective assistance of counsel, a defendant must establish that counsel's performance fell below an objectively reasonable professional standard and that the deficient performance was prejudicial to the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985).
¶4 In its ruling dismissing Giles's claim, the trial court first noted K.B. had testified at the evidentiary hearing that he had not intended to testify at trial, thus "le[aving the court] to rely on the transcript of trial counsel's argument to the Court for a trial continuance to determine the steps taken to secure witness [K.B.] for trial." Based on trial counsel's testimony at the hearing on the motion to continue that he believed K.B. "was in regular contact with [Giles] and that [Giles] had assured . . . counsel that [K.B.] was planning to attend the trial," the court found "there is an absence of evidence to overcome the strong presumption that . . . counsel's decision to rely on an apparently cooperative witness [K.B.] to appear at trial without the need for a subpoena was a sound trial strategy."
Giles had asked to continue the trial in order to secure a subpoena for K.B., whose appearance counsel had not compelled by subpoena, and who had been arrested just before the trial, ostensibly rendering him unavailable to testify.
¶5 The trial court further concluded even had counsel been ineffective by failing to subpoena K.B., Giles had not shown she was prejudiced thereby. The court noted,
The transcript of trial counsel's argument for a trial continuance documents questions from the trial court concerning why [K.B.'s] anticipated
testimony concerning the absence of lighting in the area [where] the victim was struck by the truck could not be presented through other witnesses including responding emergency and law enforcement personnel and/or the defendant.Moreover, K.B.'s testimony at the evidentiary hearing contained inconsistencies with his affidavit attached to Giles's Rule 32 petition, a factor that may have influenced the court to determine it was "left to rely" on counsel's argument at the hearing on the motion to continue. Based on this record, we cannot find the court abused its discretion by dismissing this claim.
Additionally, when asked at the hearing if everything in his affidavit was "true and correct," K.B. responded he "guess[ed]" it was, but added that he did not "remember writing anything." And when asked if someone else had written the affidavit for him, he responded, "I think so; yeah," but added that, although he did not recall telling anyone what to write, he "guess[ed]" he had.
¶6 Giles also argues trial counsel should have provided evidence to support the lesser included offense of negligent homicide and should have urged the jury to adopt this theory, maintaining the trial court erroneously denied this claim of ineffective assistance. In its ruling, the court found Giles had failed to provide evidence that counsel had been deficient in this regard, and further found she had not demonstrated prejudice. Because Giles has not provided any meaningful argument on review explaining why the court incorrectly dismissed this claim in the first instance, she has not sustained her burden on review of establishing the court abused its discretion.
We note the jury was given instructions for negligent homicide and, as the state pointed out at the evidentiary hearing, trial counsel argued to the jury that Giles simply did not "know somebody [was] behind" the vehicle she was driving.
¶7 Finally, in her fifty-four-page petition for review, Giles also raises a variety of claims not raised in her petition below, some of which are grouped generally into the following categories: "Prosecutorial," "Judge Michael Cruikshank," "Pima County Public Defender," "Legal Defender on Appeal," "Judge Jeffrey T. Bergin," "Barbara Catrillo for Rule 32 and Hearing 3-11-14," and "Evidentiary Hearing Re Rule 32." We will not address claims raised for the first time on review. See Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review shall contain "issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review"); see also State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980) (reviewing court will not consider issues raised for first time on review).
¶8 Accordingly, we grant review but deny relief.