Opinion
2 CA-CR 2023-0228-PR
07-18-2024
The State of Arizona, Respondent, v. Christopher Lamon Handy, Petitioner.
Kent P. Volkmer, Pinal County Attorney By Thomas C. McDermott, Deputy County Attorney, Florence Counsel for Respondent Christopher L. Handy, Tucson In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pinal County No. S1100CR201900100 The Honorable Patrick K. Gard, Judge
Kent P. Volkmer, Pinal County Attorney By Thomas C. McDermott, Deputy County Attorney, Florence Counsel for Respondent
Christopher L. Handy, Tucson In Propria Persona
Judge Vasquez authored the decision of the Court, in which Presiding Judge O'Neil and Judge Kelly concurred.
MEMORANDUM DECISION
VASQUEZ, JUDGE
¶1 Christopher Handy seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Handy has not established such abuse.
¶2 After a jury trial, Handy was convicted of attempted second-degree murder, two counts each of aggravated assault and endangerment, and one count of discharging a firearm at a residential structure. The facts presented at trial showed Handy had fired a pistol at three men, and the bullet grazed one man's head before lodging inside the garage of a nearby residence. Handy testified at trial that the pistol had discharged accidentally when he stumbled backwards due to a preexisting knee injury. The trial court sentenced Handy to concurrent prison terms, the longest of which is sixteen years. We affirmed his convictions and sentences on appeal. State v. Handy, No. 2 CA-CR 2020-0023 (Ariz. App. Mar. 17, 2021) (mem. decision).
In affirming Handy's sentences, we corrected the sentencing minute entry to reflect the eleven-year prison term imposed by the trial court for one of Handy's aggravated assault convictions.
¶3 Handy timely sought post-conviction relief. Several attorneys were appointed, but all withdrew, and Handy ultimately opted to represent himself. Handy filed a pro se petition and, later, a supplement to that petition, which included two reports by investigators. In those reports, the investigators opined that the bullet Handy had fired may not have struck any of the victims. In general, the investigators concluded that counsel was ineffective in failing to undertake a more thorough investigation, present exculpatory evidence at trial, request a self-defense instruction, challenge the racial composition of the jury pool, and challenge certain jurors based on their ties to law enforcement.
¶4 In his petitions, Handy argued trial counsel had been ineffective, identifying numerous purported shortcomings paralleling those identified in the investigators' reports. He also argued appellate counsel had been ineffective for rejecting his request to argue that his "aggravated charges" were improper and for failing to seek his input before filing his brief on appeal. Additionally, Handy asserted that the prosecutor had committed misconduct by amending the indictment and engaging in improper vouching, and that the endangerment statute was "intentionally vague." Handy also claimed the investigators' reports constituted newly discovered evidence and established his innocence.
¶5 The trial court summarily denied relief. It rejected as precluded Handy's prosecutorial misconduct claim, as well as his claim the endangerment statute was vague and his arguments regarding the jury pool and trial jury. See Ariz. R. Crim. P. 32.2(a)(3) (claims not raised at trial or on appeal deemed waived in post-conviction proceeding). It additionally rejected as precluded the claim Handy raised in his reply briefthat his flat-time sentence was unconstitutional. See id. The court further concluded those claims were not colorable. The court determined the investigative reports did not constitute newly discovered evidence and that Handy had not presented colorable claims of ineffective assistance of trial or appellate counsel. This petition for review followed.
The trial court also noted this claim was waived because it was raised for the first time in reply, along with claims that appellate counsel had been ineffective for failing to raise arguments regarding the jury pool and prosecutorial misconduct.
¶6 On review, Handy reasserts the bulk of his claims. Regarding those claims the trial court determined were precluded, he asserts they are exempt from preclusion under Rule 32.2(a)(3) because he did not knowingly waive them. But he cites no authority suggesting any of the identified claims implicate a constitutional right that requires knowing waiver. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (failure to develop argument waives claim on review). In any event, he did not raise this argument below, and, accordingly, we need not address it further. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (appellate court does not consider issues raised for first time in petition for review).
Handy does not reassert his claim of actual innocence under Rule 32.1(h).
¶7 Handy also argues he raised the precluded claims in conjunction with claims of ineffective assistance of counsel, but, as noted above, the trial court found Handy's ineffectiveness claims were not colorable. And, also as the court observed, two of those claims were raised for the first time in Handy's reply brief, and neither the trial court nor this court need address them. See State v. Lopez, 223 Ariz. 238, ¶¶ 5-7 (App. 2009). In his petition below, Handy identified only one argument he believes appellate counsel should have raised-the "issue of the aggravated charges." But Handy has never explained this argument, much less established that competent counsel necessarily would have raised it on appeal. See Stefanovich, 232 Ariz. 154, ¶ 16; see also State v. Febles, 210 Ariz. 589, ¶ 18 (App. 2005) ("To state a colorable claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below objectively reasonable standards and the deficient performance prejudiced the defendant.").
Handy generally complains, as he did below, that counsel did not consult with him during the appeal process. But it is counsel's role to determine which issues to raise. State v. Bennett, 213 Ariz. 562, ¶ 22 (2006). Handy did not demonstrate in his petition for post-conviction relief that counsel failed to raise a viable claim for relief on appeal.
¶8 Handy additionally reasserts on review his claim of newly discovered evidence under Rule 32.1(e). To establish a claim of newly discovered evidence, a defendant must show "that the evidence was discovered after trial although it existed before trial; that it could not have been discovered and produced at trial through reasonable diligence; that it is neither cumulative nor impeaching; that it is material; and that it probably would have changed the verdict." State v. Saenz, 197 Ariz. 487, ¶ 7 (App. 2000); see also Ariz. R. Crim. P. 32.1(e). As Handy acknowledges, the information in the investigators' reports was discoverable before trial with the exercise of reasonable diligence. Thus, the reports cannot support a claim of newly discovered evidence. See Saenz, 197 Ariz. 487, ¶ 7.
¶9 Handy reurges his claim of ineffective assistance of trial counsel and lists counsel's purported deficiencies in investigating his case and presenting it at trial. We are required to presume counsel provided competent representation, and tactical decisions will not give rise to a claim of ineffective assistance unless counsel's decisions had no reasoned basis. State v. Denz, 232 Ariz. 441, ¶ 7 (App. 2013). Many of the deficiencies Handy identifies are manifestly tactical in nature, such as whether to pursue a self-defense claim in lieu of an accidental discharge theory, whether to call a certain witness, and the manner and extent of cross-examination. See State v. Meeker, 143 Ariz. 256, 260 (1984) ("The decision as to what witness should be called to testify on the defendant's behalf is a tactical, strategic decision."); State v. Noleen, 142 Ariz. 101, 108 (1984) (failure to request a self-defense instruction not ineffective when defense was accidental homicide); State v. McDaniel, 136 Ariz. 188, 198 (1983) (manner of cross-examination is strategic).
¶10 In any event, Handy's argument is devoid of citation to the record-either to trial transcripts or evidence supporting his claims that additional investigation would have yielded useful exculpatory evidence. See Ariz. R. Crim. P. 32.16(c)(2)(C) (petition for review must contain "specific references to the record for each material fact"). Handy's petitions below and the investigators' reports similarly lack citation to the record. See Ariz. R. Crim. P. 32.7(b). The reports themselves are largely summary and often lack firm conclusions about what additional investigation might have uncovered. Thus, the trial court did not err in concluding Handy had not presented colorable claims of ineffective assistance of trial counsel or appellate counsel. See Febles, 210 Ariz. 589, ¶ 18.
For example, the report by investigator Connie Mayhugh asserts, without evidence, that the public defender and the prosecutor routinely collude "to obtain convictions," and Mayhugh opines that "independent review" may have shown the bullet Handy fired did not strike the victim. The report by Patrick Cote asserts that a more thorough investigation of the trajectory of the bullet and the victim's head wound might have aided Handy but reaches no conclusions about what those investigations would have shown. Cote additionally opines that a defense witness who testified at trial should have been separately interviewed by defense counsel, but the report only speculates as to what that witness would have said.
¶11 We grant review but deny relief.