Opinion
No. 2 CA-CR 2020-0196-PR
11-25-2020
THE STATE OF ARIZONA, Respondent, v. ERIC JASON HARMS, Petitioner.
Eric Jason Harms, Florence 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Maricopa County
No. CR2016001561001DT
The Honorable Christopher Coury, Judge
REVIEW GRANTED; RELIEF DENIED
Eric Jason Harms, Florence
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Eric Harms seeks review of the trial court's ruling 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. Kolmann, 239 Ariz. 157, ¶ 8 (2016). Harms has not met his burden of establishing such abuse here.
Our supreme court amended the post-conviction relief rules, effective January 1, 2020. Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019). "The amendments apply to all cases pending on the effective date unless a court determines that 'applying the rule or amendment would be infeasible or work an injustice.'" State v. Mendoza, 249 Ariz. 180, n.1 (App. 2020) (quoting Ariz. Sup. Ct. Order R-19-0012). "Because it is neither infeasible nor works an injustice here, we cite to and apply the current version of the rules." Id.
¶2 After a jury trial, Harms was convicted of seven counts of sexual conduct with a minor and five counts of sexual exploitation of a minor. The trial court sentenced him to consecutive prison terms, including three life sentences. This court affirmed Harms's convictions and sentences on appeal. State v. Harms, No. 1 CA-CR 17-0217 (Ariz. App. May 17, 2018) (mem. decision).
¶3 Harms filed a notice of post-conviction relief, and the trial court appointed counsel. Thereafter, counsel filed a notice, stating she was "unable to find any claims for relief to raise" and requesting an extension of time for Harms to file a pro se petition. The court granted that request.
¶4 In his subsequently filed pro se petition, Harms asserted several claims of ineffective assistance of trial counsel, including that counsel had failed "to investigate potentially exculpatory evidence," to object to "the state[']s motion to modify the dates of the indi[c]tment," to call and examine witnesses, and "to address the state[']s lack of . . . evidence." He also challenged the sufficiency of the evidence to support his convictions and alleged a claim of prosecutorial misconduct.
¶5 The trial court summarily dismissed Harms's petition. It concluded that Harms's challenge to the sufficiency of the evidence was precluded because it had been adjudicated on direct appeal and that his claim of prosecutorial misconduct was also precluded because it could have been raised on direct appeal but was not. As to the claims of ineffective assistance of counsel, the court determined that Harms had failed to establish either deficient performance or prejudice. It noted that the evidence counsel had purportedly failed to investigate "was not exculpatory as to the actual acts for which [Harms] was convicted" and that counsel did object to the state's request to modify the indictment but the court overruled the objection. The court further observed that counsel had "raised a cogent, organized and effectively-presented defense" and that Harms had "overlook[ed] the fact that defense counsel successfully persuaded the jury to acquit [him] of multiple counts." This petition for review followed.
¶6 On review, Harms contends the trial court erred in finding he was "precluded from raising any claim that could have been raised on direct appeal." He maintains that "[i]t is not possible to raise the issue of ineffective [assistance] of counsel [whether] it be trial counsel or app[ellate] counsel until the Post-Conviction Relief process" and that he properly raised, in his Rule 32 petition, the failure of his trial and appellate counsel "to address the fact that the prosecutor misled the jury and manipulated evidence."
Harms does not reassert his sufficiency of the evidence argument on review. We therefore do not address it. See Ariz. R. Crim. P. 32.16(c)(4); see also State v. Rodriguez, 227 Ariz. 58, n.4 (App. 2010) (declining to address argument not raised in petition for review). Even if he had raised this argument on review, the trial court properly concluded it was precluded. See Ariz. R. Crim. P. 32.2(a)(2); see also Harms, No. 1 CA-CR 17-0217, ¶¶ 18-19.
¶7 Harms is correct that claims of ineffective assistance of counsel must be asserted in post-conviction proceedings. See State v. Spreitz, 202 Ariz. 1, ¶ 9 (2002). But the trial court did not find such claims precluded here. Instead, it properly determined that Harms's standalone claim of prosecutorial misconduct was precluded as waived on appeal. See Ariz. R. Crim. P. 32.2(a)(3). Contrary to Harms's assertion, he did not argue below that trial or appellate counsel had been ineffective in failing to raise the issue of prosecutorial misconduct. We therefore do not address it for the first time on review. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980). In any event, this preclusion determination has no effect on Harms's remaining claims of ineffective assistance of counsel.
¶8 "To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006) (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. Under the first prong of Strickland, "we must presume 'counsel's conduct falls within the wide range of reasonable professional assistance' that 'might be considered sound trial strategy.'" State v. Denz, 232 Ariz. 441, ¶ 7 (App. 2013) (quoting Strickland, 466 U.S. at 689). "[D]isagreements about trial strategy will not support an ineffective assistance claim if 'the challenged conduct has some reasoned basis,' even if the tactics counsel adopts are unsuccessful." Id. (quoting State v. Gerlaugh, 144 Ariz. 449, 455 (1985)). To show prejudice under the second prong, a defendant must establish there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
¶9 Harms seems to challenge the trial court's finding that trial counsel's performance was not deficient. He argues that counsel "had evidence"—specifically, a text message from the victims discussing a "plan to frame" him—that she did not present to the jury. But counsel did not have the text message because, as Harms testified at trial, he had deleted it. In his petition below, Harms asserted that counsel should have subpoenaed the phone company's records to get a copy of the purportedly exculpatory text message. But Harms has failed to establish that the text messages could have been obtained this way. See State v. Rosario, 195 Ariz. 264, ¶ 23 (App. 1999) (claim for post-conviction relief must be based on "a provable reality, not mere speculation"). Moreover, counsel's decision to otherwise develop Harms's defense, rather than trying to recover these supposed text messages, was tactical. See Denz, 232 Ariz. 441, ¶ 7.
¶10 Harms also contends the trial court erred by suggesting that he had argued trial counsel was ineffective for failing to object to the amendment of the indictment. He acknowledges that counsel did object to modifying the dates in the indictment but maintains that "[t]he issue is in counsel[']s surrender to the objection" because counsel indicated the "modification would [not a]ffect or alter [the] defense." Although counsel confirmed that she could not think of any "additional preparation that could have been conducted" based on the amendments, it is not clear what Harms otherwise expected counsel to do. And, again, Harms's disagreement with counsel's determination does not support his claim of ineffective assistance. See Denz, 232 Ariz. 441, ¶ 7; see also State v. Lee, 142 Ariz. 210, 215 (1984) ("Tactical decisions require the skill, training, and experience of the advocate.").
¶11 Harms lastly challenges the trial court's statement that trial counsel successfully persuaded the jury to acquit Harms of several counts. He maintains it was the state's evidence and witness that led to him being acquitted. In any event, Harms places too much emphasis on the court's statement. The court's conclusion that counsel did not render deficient performance was not based on Harms's acquittals. The statement at issue, as we understand it, was more of a general observation about counsel's success.
¶12 Moreover, with regard to the claims of ineffective assistance of counsel, Harms wholly fails to address the trial court's additional finding that he had failed to establish prejudice. See Ariz. R. Crim. P. 33.16(c)(4) ("A party's failure to raise any issue that could be raised in the petition for review or cross-petition for review constitutes a waiver of appellate review of that issue."); see also State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (failure to develop argument waives claim on review). Thus, the trial court did not abuse its discretion in summarily dismissing Harms's petition. See Kolmann, 239 Ariz. 157, ¶ 8.
¶13 We grant review but deny relief.