Opinion
No. 2 CA-CR 2017-0087-PR
06-29-2017
THE STATE OF ARIZONA, Respondent, v. JAMES EDWARD HUGABOOM, Petitioner.
COUNSEL The Law Offices of Stephanie K. Bond, P.C., Tucson By Stephanie K. Bond 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NOT FOR PUBLICATION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. 31.24. Petition for Review from the Superior Court in Pima County
No. CR20134758001
The Honorable Christopher C. Browning, Judge
REVIEW GRANTED; RELIEF GRANTED IN PART AND DENIED IN PART
COUNSEL The Law Offices of Stephanie K. Bond, P.C., Tucson
By Stephanie K. Bond
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Howard concurred. VÁSQUEZ, Presiding Judge:
The Hon. Joseph W. Howard, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 James Hugaboom 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 clearly has abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We grant review and, for the reasons that follow, grant relief in part and deny relief in part.
¶2 After a jury trial, Hugaboom was convicted of sexual exploitation of a minor under fifteen and sexual conduct with a minor under fifteen. The trial court sentenced him to consecutive prison terms totaling thirty-seven years. On appeal, we affirmed the convictions and sentences. State v. Hugaboom, No. 2 CA-CR 2014-0279 (Ariz. App. Dec. 16, 2015) (mem. decision).
Hugaboom pled guilty to two additional counts, for which the trial court imposed consecutive terms of lifetime probation.
¶3 Hugaboom thereafter sought post-conviction relief, raising several claims of ineffective assistance of trial counsel and asserting he was entitled to an evidentiary hearing. As summarized in his petition for review, Hugaboom specifically alleged counsel was ineffective by (1) "open[ing] the door" to a precluded photograph of the victim in the shower and uncharged other acts involving the victim; (2) failing to seek a limiting instruction regarding the uncharged acts; (3) failing to call the doctor who had examined the victim and to cross-examine the nurse regarding the absence of genital trauma; (4) failing to call the DNA expert; and (5) failing to offer as exhibits photographs of Hugaboom's hands. Hugaboom further argued he was entitled to relief based on the "cumulative effect" of counsel's alleged errors and omissions. The trial court summarily denied relief, addressing each of Hugaboom's claims individually and generally finding "even if trial counsel's behavior fell below the standard of reasonably effective assistance," Hugaboom had "not demonstrated any prejudice therefrom." The court thus concluded Hugaboom had failed to establish a colorable claim of ineffective assistance.
Deoxyribonucleic acid.
Because Hugaboom does not appear to raise a claim of cumulative error on review, we do not address it.
¶4 On review, Hugaboom repeats the arguments he made below and asserts the trial court erred by determining he failed to state a colorable claim of ineffective assistance and, as a result, erroneously denied his petition without conducting an evidentiary hearing. "To state a colorable claim of ineffective assistance of counsel, a defendant must both show that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006); see also Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶5 We initially address the first issue Hugaboom raised, which the trial court characterized as whether "trial counsel was ineffective for opening the door to the admission of the precluded shower photograph" of the victim. Noting it had sustained defense counsel's objection to the state's motion to admit the shower photograph, the court ruled as follows:
The trial court denied as untimely the "State's Notice of Intent to Introduce Other Acts Evidence Pursuant to Rule 404(b)," which the court treated as a motion.
During the examination of the victim, trial counsel elicited testimony concerning a shower photograph of the victim. This Court agrees with the State's position that while this involved an uncharged act, it does not rise to the level of unreasonableness given the fact that the victim was the same, the acts were similar and the time and geographic locations were almost identical. This does not rise to the level of unreasonable [performance] under Strickland. Petitioner in his reply stated that a [Rule] 403[, Ariz. R. Evid.,] balancing test must be undertaken. However, even if that is done, the prejudicial effect would have to substantially outweigh the probative value of the evidence. Here, that standard is not met. There is no evidence that the prejudicial effect had such an overwhelming effect that it substantially outweighed the probative value of the evidence.
¶6 We conclude the trial court abused its discretion by determining counsel's conduct did not constitute deficient performance under Strickland. The issue was not whether the admission of the photograph was reasonable, but the reasonableness of counsel's action in opening the door to the admission of the photograph. Having obtained a ruling from the court that precluded the state from introducing the shower photograph, we cannot fathom how counsel's opening the door to the photograph was based on trial strategy or had any other reasoned basis. See State v. Meeker, 143 Ariz. 256, 260, 693 P.2d 911, 915 (1984) ("Disagreements as to trial strategy . . . will not support a claim of ineffective assistance of counsel as long as the challenged conduct could have some reasoned basis."). Nor, apparently, did the court find persuasive the reasons trial counsel proffered in sidebars to the court to explain his actions, the transcripts of which are part of the record. And although we would normally require a petitioner to provide affidavits to support his claim that counsel's conduct was deficient, based on the record before us, we do not find Hugaboom's failure to have done so dispositive. See Ariz. R. Crim. P. 32.5 (requiring, as attachments to petition, "[a]ffidavits, records, or other evidence currently available to the defendant supporting the allegations").
¶7 In addition, although the trial court weighed the prejudice from trial counsel's conduct before it denied his petition, it did so using an incorrect legal standard. The Rule 403 prejudice analysis the court applied, albeit at Hugaboom's request, is not the same as that required to establish ineffective assistance of counsel under Strickland. Rule 403 permits a trial court to preclude otherwise admissible evidence "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." See Ariz. R. Evid. 403. In contrast, to show prejudice based on a claim of ineffective assistance, a petitioner is required to demonstrate 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. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. In determining whether a claim is colorable and, thus if a defendant is entitled to an evidentiary hearing, we treat the defendant's factual allegations as true. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d at 68; see also State v. D'Ambrosio, 156 Ariz. 71, 73, 750 P.2d 14, 16 (1988).
¶8 Accordingly, because the trial court erroneously found counsel's conduct was not deficient and then used an incorrect standard to determine that Hugaboom did not sustain his burden of establishing prejudice on his claim, we direct the court to reconsider its ruling solely as to this claim to determine if Hugaboom established prejudice under the correct standard. If the court deems it necessary to conduct an evidentiary hearing to make that determination, it may do so. See D'Ambrosio, 156 Ariz. at 74, 750 P.2d at 16 (whether claim is colorable, warranting evidentiary hearing "is, to some extent, a discretionary decision for the trial court"); see also Strickland, 466 U.S. at 699-700 (finding question of prejudice "resolvable" on basis of petition; state courts properly dismissed claim without hearing). Finally, to the extent Hugaboom contends Garcia v. State, 308 S.W.3d 62 (Tex. Ct. App. 2009), controls our resolution of this issue, we decline to address that argument in light of our ruling.
¶9 We next address Hugaboom's remaining claims, set forth as issues two through five above. The Rule 32 judge, who also presided over the trial below, identified and addressed these claims, and resolved them correctly in a manner permitting this court to review and determine the propriety of that order. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). No purpose would be served by restating the trial court's ruling in its entirety here. See id. Rather, we adopt that portion of the court's ruling in which it addressed issues two through five.
¶10 We therefore grant review, and grant relief in part and deny relief in part consistent with this decision.