Opinion
No. 1 CA-CR 13-0687 PRPC
04-30-2015
STATE OF ARIZONA, Respondent, v. DAIMEN JOSEPH IRIZARRY, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Karen Kemper Counsel for Respondent Shell & Nermyr, PLLC, Chandler By Charles K. Shell Counsel for Petitioner
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Petition for Review from the Superior Court in Maricopa County
CR 2010-106178-001 SE
The Honorable Christopher T. Whitten, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Karen Kemper
Counsel for Respondent
Shell & Nermyr, PLLC, Chandler
By Charles K. Shell
Counsel for Petitioner
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Maurice Portley and Judge Michael J. Brown joined.
GEMMILL, Judge:
¶1 Daimen Joseph Irizarry petitions for review of the trial court's summary dismissal of his post-conviction relief proceeding commenced pursuant to Rule 32, Ariz. R. Crim. P. We have considered his petition and, for the following reasons, we grant review but deny relief.
¶2 A jury found Irizarry guilty of eight counts of aggravated assault, four counts of drive-by shooting, and one count of unlawful flight. The charges stemmed from an incident in which the passenger in a pick-up truck driven by Irizarry shot at and threw objects at pursuing law enforcement officers during a vehicle chase that began after the passenger fatally shot a police officer. The trial court imposed consecutive and concurrent terms of imprisonment totaling more than one hundred years.
¶3 Following his sentencing, Irizarry filed a motion to vacate judgment, arguing his convictions violated the United States Constitution because the State intentionally used perjured testimony and false evidence to convict him. Among the allegations of false evidence and perjured testimony were claims pertaining to the admission of a recording of radio communications between a police dispatcher and the officer who was killed during the traffic stop. The trial court denied the motion, finding, among other things, that any false evidence or perjured testimony regarding the recording was not material because it would not have affected the outcome. On appeal, this court affirmed the denial of the motion to vacate judgment. State v. Irizarry, 1 CA-CR 10-0866 (Ariz. App. Jul. 11, 2012) (mem. decision).
¶4 Counsel for Irizarry filed a petition for post-conviction relief alleging claims of prosecutorial misconduct and ineffective assistance of counsel. The claim of prosecutorial misconduct related to the admission of false evidence and perjured testimony that was the subject of the earlier motion to vacate judgment. Attached to the petition was a pro se Notice of Other Issues Irizarry wanted to have considered. The trial court summarily dismissed the petition, ruling that Irizarry failed to state a colorable claim of ineffective assistance of counsel or prosecutorial misconduct. In addition, the trial court found that the claims relating to the alleged prosecutorial misconduct involving testimony and the admission of the recording of radio communications between the police dispatcher and the police officer who was killed were precluded based on the decision rendered on Irizarry's direct appeal. As for the issues raised in Irizarry's pro se notice of additional issues, the trial court ruled that Irizarry failed to state a colorable claim because his contentions consisted solely of conclusory assertions with no supporting documentation.
¶5 In his petition for review, Irizarry challenged the trial court's ruling that he failed to state a colorable claims of prosecutorial misconduct and ineffective assistance of appellate counsel. We review the summary dismissal of a petition for post-conviction relief for abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17, 146 P.3d 63, 67 (2006).
¶6 The claim of prosecutorial misconduct asserted by Irizarry is based on the prosecutor's alleged wrongful conduct in introducing the recording of the radio communications and related testimony regarding that recording. This court, however, addressed and rejected a claim of prosecutorial misconduct with respect to the denial of the motion to vacate judgment based on that evidence as part of Irizarry's direct appeal. Accordingly, because it was raised and decided on appeal, the claim of prosecutorial misconduct raised in the petition for post-conviction relief was properly deemed precluded. Ariz. R. Crim. P. 32.2(a)(2). To the extent the claim asserted in the petition for post-conviction relief can be viewed as not being precisely the same claim as that raised on appeal because it is worded differently, it still is precluded because it could have been raised on direct appeal. Ariz. R. Crim. P. 32.2(a)(1), (3).
¶7 The claim of ineffective assistance of appellate counsel alleged in the post-conviction proceeding is based on the alleged failure of appellate counsel to raise a claim on appeal of prosecutorial misconduct relating to the admission of the recorded dispatch communications. To prevail on a claim of ineffective assistance of counsel, a defendant must show both deficient performance and the reasonable probability that, but for counsel's unreasonable conduct, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984).
¶8 Because prosecutorial misconduct with respect to the admission of the dispatch communications and related testimony was raised and decided on appeal, the trial court properly concluded that Irizarry failed to show any deficient performance by appellate counsel. The fact that the prosecutorial misconduct claim was not framed in exactly the same manner on appeal as stated by Irizarry in his petition for post-conviction relief does not make appellate counsel's performance deficient. "Appellate counsel is not ineffective for selecting some issues and rejecting others." State v. Febles, 210 Ariz. 589, 596, ¶ 19, 115 P.3d 629, 636 (App. 2005) (citation omitted). "Absent any evidence that the failure to raise an issue fell below prevailing professional norms and would have changed the outcome of the appeal, the claim is not colorable." Id. Irizarry made no showing in his petition that his appellate counsel fell below prevailing professional norms in raising the claim of prosecutorial misconduct in the
manner that it was raised on appeal as opposed to the manner in which it is worded in the post-conviction proceeding.
¶9 Moreover, in addition to concluding there was no false evidence or perjured testimony presented in regard to the recording of the dispatch communication, this court held on direct appeal that the recording and related testimony underlying the claim of prosecutorial misconduct had no material effect on the outcome of the trial. Specifically, this court noted that any possible harmful effect of the evidence and testimony was eliminated when Irizarry called the dispatcher and clarified any confusion or erroneous impression that may have been created by the prosecutor's actions. Given this holding on appeal regarding the non-materiality of the evidence, the trial court could reasonably conclude that there could be no prejudice with respect to any other claim of prosecutorial misconduct that could have been raised concerning the admission of the recording and related testimony. Thus, there was no abuse of discretion by the trial court in finding that the petition for post-conviction relief failed to state a colorable claim of ineffective assistance of appellate counsel.
¶10 We grant review and, for these reasons, we deny relief.