Opinion
No. 2 CA-CR 2020-0114-PR
01-13-2021
THE STATE OF ARIZONA, Respondent, v. RODERICK AARON HARRELL, Petitioner.
COUNSEL Law Offices of Lawrence Y. Gee PLLC, Tucson By Lawrence Y. Gee and Lou Spivack PC, Tucson By Lou Spivack Counsel for Petitioner
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NOT FOR PUBLICATION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 Pima County
No. CR20165200001
The Honorable Christopher Browning, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Law Offices of Lawrence Y. Gee PLLC, Tucson
By Lawrence Y. Gee and Lou Spivack PC, Tucson
By Lou Spivack
Counsel for Petitioner
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Vásquez concurred. BREARCLIFFE, Judge:
¶1 Roderick Harrell seeks review of the trial court's ruling summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Harrell has not shown 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 Harrell was convicted of theft of a means of transportation and conducting a "chop shop" after a jury trial. His convictions stemmed from his attempt to have a vehicle identification number assigned to a motorcycle that he claimed he had assembled from purchased parts, but the number instead matched a motorcycle stolen from a Harley Davidson dealership approximately ten months before. The trial court sentenced him to concurrent, ten-year prison terms.
A "chop shop" is defined by A.R.S. § 13-4701(1) as "any building, lot or other premises in which one or more persons alters, destroys, disassembles, dismantles, reassembles or stores at least one motor vehicle or watercraft or two or more motor vehicle or watercraft parts from at least one vehicle or watercraft that the person or persons knows were obtained by theft, fraud or conspiracy to defraud," if that person intends to misrepresent the identity of the vehicle or parts, or to sell or dispose of the vehicles or parts.
¶3 Harrell filed a notice of appeal, which he then voluntarily dismissed to seek post-conviction relief. In his petition, he argued his trial counsel had been ineffective in failing "to present a Harley Davidson motorcycle expert," who could have testified the motorcycle Harrell had attempted to register was built from "various Harley motorcycle parts" and "shown that the testimony offered by the State's witnesses was in fact false. The expert also "would have justified . . . preserving the motorcycle for later examination," thereby supporting efforts to obtain an instruction pursuant to State v. Willits, 96 Ariz. 184 (1964), because the motorcycle had been returned to the victim and sold.
¶4 Harrell included with his petition an affidavit by a defense attorney opining that trial counsel's "failure to present an expert" could not "be considered a tactical decision." He also included an affidavit by a former motorcycle mechanic and an affidavit from an insurance claims adjuster, each opining about various purported deficiencies in the state's expert witness's evaluation of the motorcycle and in an exhibit submitted by the state at trial that listed part numbers and other information about the stolen motorcycle.
¶5 In its response, the state attached a recorded interview with trial counsel in which he stated he had, in fact, consulted with an expert before trial for, in part, support in obtaining a Willits instruction. That expert had opined, consistent with the state's theory of the case, that the motorcycle Harrell had attempted to register had not been altered and, thus, that his testimony would be damaging to the defense. The trial court summarily dismissed the petition, concluding trial counsel had not fallen below prevailing professional standards because he had consulted with an expert before trial. This petition for review followed.
¶6 On review, Harrell first argues his trial counsel was ineffective in failing to adequately "challenge the State's experts and call his own independent experts." "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).
¶7 Although the failure to consult with an expert may fall below prevailing professional norms if counsel lacked "a reasoned basis justifying the decision," id. ¶ 12, counsel consulted with an expert before trial. On review, Harrell now asserts counsel was ineffective for failing to consult with another expert, citing Richey v. Mitchell, 395 F.3d 660 (6th Cir. 2005). But that decision was vacated by the United States Supreme Court, Bradshaw v. Richey, 546 U.S. 74 (2005), significantly reducing any persuasive value it may have had. See Harianto v. State, 249 Ariz. 563, ¶¶ 11-12 (App. 2020) (noting courts have cited vacated decisions for "some type of persuasive value").
¶8 But the case is readily distinguishable in any event. There, like here, the expert retained by defense counsel agreed with the state's experts. Richey, 395 F.3d at 667. However, unlike in this case, defense counsel had significant reasons to doubt the expert's competence and conclusions, failed to adequately communicate with that expert, and did not provide the expert with critical information about the case. Id. at 666-68, 683-85. The court, however, emphasized counsel need not consult with experts "'just because the one he consulted gave an unfavorable opinion.'" Id. at 365 (quoting Dees v. Caspiri, 904 F.2d 452, 454 (8th Cir. 1990). Harrell has cited no evidence or authority suggesting defense counsel falls below prevailing professional standards by failing to consult with experts until locating one that supports the defendant's case. Instead, after consulting with an expert who confirmed the opinions of the state's experts, counsel adopted a defense strategy intended to minimize those opinions—that Harrell was unaware the motorcycle had been stolen. This is precisely the type of conscious and informed strategic decision that cannot support a claim of ineffective assistance. See Denz, 232 Ariz. 441, ¶¶ 7, 11.
Although Harrell does not cite or discuss the decision, the Sixth Circuit on remand again concluded trial counsel had been ineffective. Richey v. Bradshaw, 498 F.3d 344, 363 (6th Cir. 2007). The court's revised reasoning does not aid Harrell. The court again emphasized that counsel was not required "to shop around for another expert who would refute the conclusions of" the other experts. Id. It instead concluded that, despite retaining an expert, counsel had been ineffective because he "either willfully or negligently ke[pt] himself in the dark about what that expert [wa]s doing, and what the basis for the expert's opinion [wa]s." Id.
¶9 Insofar as Harrell asserts, independent of his claim that counsel failed to retain a favorable expert, that counsel failed to adequately prepare for trial, he did not raise this argument in his petition below. In his petition for post-conviction relief, he focused exclusively on counsel's failure to retain an expert. Harrell broadened that argument in his reply to the state's response. But the trial court was not required to consider that expanded argument and, in fact, expressly declined to do so, stating "[t]he sole issue" for its "consideration is whether [Harrell]'s trial counsel was ineffective for failing to call a Harley Davidson motorcycle expert as a witness at trial." See Ariz. R. Crim. P. 33.9(d) (allowing amendment of petition "only for good cause"); cf. State v. Lopez, 223 Ariz. 238, ¶¶ 6-7 (App. 2009) (court not required to address claims raised for first time in reply brief). Accordingly, we do not address this argument further. For the same reason, we decline to address Harrell's claim that counsel was ineffective for stipulating to admission of an exhibit.
¶10 We grant review but deny relief.