Opinion
No. 2 CA-CR 2018-0327-PR
02-20-2019
THE STATE OF ARIZONA, Respondent, v. JERRY CHARLES HOLLE, Petitioner.
COUNSEL Scott A. Martin, Tucson 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NOT FOR PUBLICATION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. CR20131185001
The Honorable Renee T. Bennett, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Scott A. Martin, Tucson
Counsel for Petitioner
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred. ECKERSTROM, Chief Judge:
¶1 Jerry Holle seeks review of the trial court's orders denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb those orders unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Holle has not shown such abuse here.
¶2 Holle was convicted after a jury trial of child molestation and sexual abuse of a minor under the age of fifteen; the trial court sentenced him to consecutive prison terms totaling fifteen years. State v. Holle, 240 Ariz. 300, ¶ 5 (2016). Holle appealed, arguing the trial court had erred by instructing the jury that he bore the burden of demonstrating his conduct was not motivated by a sexual interest. Id. ¶ 6. We determined that, although the trial court had erred because "'the state must prove beyond a reasonable doubt that the defendant's conduct was motivated by a sexual interest,'" any error was harmless; we therefore affirmed his convictions and sentences. Id. (quoting State v. Holle, 238 Ariz. 218, ¶ 26 (App. 2015)). Our supreme court, however, determined that the lack of sexual motivation is an affirmative defense and, thus, that the trial court had properly instructed the jury. Id. ¶ 50. The supreme court vacated our decision on appeal and affirmed Holle's convictions and sentences. Id.
¶3 Holle sought post-conviction relief, raising four claims: (1) May v. Ryan, 245 F. Supp. 3d 1145 (D. Ariz. 2017), constitutes a significant change in the law entitling him to relief; (2) his appellate and trial counsel had been ineffective in failing to adequately challenge the admission of his prior acts of sexual conduct with the victim; (3) newly discovered evidence exists that the acts underlying his convictions were not sexually motivated, but instead were "over-the-top reactions" to the victim's "inappropriate nudity" or, alternatively, that his trial counsel was ineffective for failing to "develop and present this defense at trial"; and (4) he is actually innocent. The trial court summarily rejected the bulk of Holle's claims, and rejected after an evidentiary hearing his claim that counsel had been ineffective for failing to develop the proposed defense. This petition for review followed.
¶4 On review, Holle raises two issues. He first seeks to "preserve" his claim that May constitutes a significant change in the law, stating that "[i]f May is affirmed by either the Ninth Circuit or the Supreme Court by the time [we rule] on this petition, [we] should grant relief." No such ruling has occurred and we do not address this issue further.
Holle has abandoned the remainder of the claims he raised below.
In May, a federal trial court determined that A.R.S. §§ 13-1407(E) and 13-1410 unconstitutionally shifted the burden of proof to the defendant because, by making the lack of sexual motivation an affirmative defense to child molestation, he was required to disprove an element of the offense, namely "sexual intent." 245 F. Supp. 3d at 1154-56, 1164. As the trial court correctly concluded, however, the court's conclusion in May is contradicted by our supreme court's decision in Holle, 240 Ariz. 300, ¶¶ 17-19, which, for this court, is controlling. See State v. Smyers, 207 Ariz. 314, n.4 (2004) (Arizona's courts bound by decisions of supreme court and lack authority to modify or disregard its rulings); Arpaio v. Figueroa, 229 Ariz. 444, ¶ 11 (App. 2012) (federal district court decisions concerning state law not binding on this court).
¶5 Holle next asserts the trial court erred in rejecting his claim that appellate counsel was ineffective for failing to argue on appeal that the trial court was required to hold an evidentiary hearing before permitting the victim to testify about uncharged conduct by Holle, which the court found admissible at trial under Rule 404(b), Ariz. R. Evid. See generally State v. Terrazas, 189 Ariz. 580, 582 (1997) (to admit other-act evidence under Rule 404(b), state "must prove by clear and convincing evidence that the prior bad acts were committed and that the defendant committed the acts"); but see State v. LeBrun, 222 Ariz. 183, ¶ 10 (App. 2009) (Rule 404(b) does not require an evidentiary hearing). "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); see also Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶6 We need not address, however, whether the trial court erred by declining to conduct an evidentiary hearing. Nor need we address whether appellate counsel fell below prevailing professional norms by not raising this argument. In rejecting Holle's petition for post-conviction relief, the court determined that Holle did not demonstrate prejudice because any error was harmless and, thus, would not have warranted relief on appeal. See State v. Henderson, 210 Ariz. 561, ¶ 18 (2005) (error is harmless when it "did not contribute to or affect the verdict or sentence"). Holle has not established the court's determination was incorrect.
Holle included with his petition an affidavit by a defense attorney opining that the failure to raise the claim on appeal "was performance below the prevailing professional norm." In light of our unequivocal statement in LeBrun that an evidentiary hearing is not required by Rule 404(b), we are skeptical that any competent attorney necessarily would have raised this argument, particularly given that the trial court reviewed recorded statements by the victim and by Holle before allowing the evidence to be admitted.
¶7 The trial court concluded any error was harmless because the evidence that Holle had acted with a sexual motivation was overwhelming. On review, Holle primarily complains that the court's analysis improperly considered the victim's testimony about his uncharged acts because the court relied, in part, on our decision on appeal in which we also concluded the evidence was overwhelming but considered the other-act evidence in doing so. But the trial court specifically referred to Holle's statements to police, in which he not only admitted having committed the acts for which he was later convicted, he indicated his motivation for doing so had been sexual. As the court noted, Holle told police he had "rubbed his genitals against [the victim's] bottom two or three times" to "show[] [her] how to hump." He also stated that he had engaged in such behavior with the victim because "she's wanting to be with . . . a male." Holle does not address these statements on review and, indeed, frames his harmless error discussion in terms of a claim that he did not present at trial and that is at odds with his statements to police—specifically, that he had merely "brusquely show[n]" the victim "that unexpected and unwanted things can happen to girls who" are "inappropriate[ly] nud[e]." Thus, Holle has not established that the trial court erred by finding any potential error harmless and rejecting his claim of ineffective assistance of appellate counsel.
¶8 We grant review but deny relief.