Opinion
2 CA-CR 2023-0015-PR
02-28-2023
The State of Arizona, Respondent, v. Luis Christopher Mendez, Petitioner.
Rachel Mitchell, Maricopa County Attorney By Faith C. Klepper, Deputy County Attorney, Phoenix Counsel for Respondent Ballecer & Segal LLP, Phoenix By Natalee Segal Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR2014157451001SE The Honorable Geoffrey Fish, Judge
Rachel Mitchell, Maricopa County Attorney
By Faith C. Klepper, Deputy County Attorney, Phoenix
Counsel for Respondent
Ballecer & Segal LLP, Phoenix
By Natalee Segal
Counsel for Petitioner
Judge Gard authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.
MEMORANDUM DECISION
GARD, Judge:
¶1 Petitioner Luis Mendez seeks review of the trial court's order dismissing his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Ainsworth, 250 Ariz. 457, ¶ 1 (App. 2021) (quoting State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007)). Mendez has not sustained his burden of establishing such abuse here.
¶2 Following a jury trial in absentia, Mendez was convicted of possession or use of dangerous drugs and possession of drug paraphernalia. After he was taken into custody, the trial court sentenced him to concurrent prison terms, the longer of which was 2.5 years. His convictions and sentences were affirmed on appeal. State v. Mendez, No. 1 CA-CR 18-0485 (Ariz. App. Jan. 9, 2020) (mem. decision).
¶3 Mendez thereafter sought post-conviction relief, arguing in his petition that he received ineffective assistance of trial counsel based on counsel's failure to file a motion to suppress. The trial court summarily denied relief.
¶4 On review, Mendez contends the trial court abused its discretion in denying relief without a 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, ¶¶ 17, 21 (2006) (defendant entitled to hearing if claim is colorable); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). "To establish deficient performance, a defendant must show that his counsel's assistance was not reasonable under prevailing professional norms, 'considering all the circumstances.'" State v. Kolmann, 239 Ariz. 157, ¶ 9 (2016) (quoting Hinton v. Alabama, 571 U.S. 263, 273 (2014)). To show prejudice, a defendant must show that 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.
¶5 In April 2014, a casino security guard saw Mendez smoking marijuana in the casino parking lot. Mendez told the security guard that he had a medical marijuana card, but the guard informed him that the card was not valid on tribal land. An officer and a detective from the Salt River Police Department arrived, and the detective asked Mendez if he could retrieve the marijuana from Mendez's vehicle. Mendez agreed, told him where the marijuana was located in the vehicle, and gave him the keys. When the detective opened the driver's side door, he "immediately" noticed a "small glasses case" that was "visible as soon as [he] opened the door," under the driver's seat. The case contained a glass pipe and methamphetamine.
¶6 Trial counsel did not file a motion to suppress. He raised the scope of Mendez's consent as an issue during trial, but an objection to a question on that point was sustained. After suggesting he might call one of the officers to question him further on the consent issue, counsel ultimately decided not to do so.
¶7 In his petition for post-conviction relief, Mendez argued that he had not consented to "a general search of his car" and that, because the search had "exceeded the scope" of his consent, the evidence found in the glasses case would have been suppressed had counsel filed a motion. He further asserted counsel's failure prejudiced him "because the case would have been dismissed had the evidence been suppressed." The trial court adopted the state's arguments that an officer can extend a vehicle search beyond the driver's consent based on probable cause and that, even absent probable cause, the evidence would have been discovered in an inventory search of Mendez's vehicle. The court therefore determined that Mendez could not "show that a Motion to Suppress would have been successful" and, therefore, that he had not shown counsel's performance was deficient or prejudice resulting from the failure to file the motion.
¶8 On review, Mendez argues that the trial court abused its discretion in rejecting his claim of ineffective assistance and that he was entitled to an evidentiary hearing. Citing State v. Fillmore, 187 Ariz. 174, 181 (App. 1996), he argues that he did "not need to show he would have prevailed on the suppression motion" but rather had only "to show that the warrantless search was 'of questionable validity.'" But Mendez reads Fillmore too broadly. As explained in Fillmore, an attorney falls below professional norms if he or she fails to file a motion to suppress when evidence has been obtained as the result of a search that is "clearly of questionable validity." 187 Ariz. at 181 (emphasis added). In Fillmore, officers had searched the defendant's private property without a warrant, consent, or exigent circumstances, making the search "clearly of questionable validity." Id. (emphasis added). Thus, the court concluded Fillmore had established "a colorable claim that the evidence in question was excludable" and that he could therefore prevail on a motion to suppress, so that counsel was ineffective in failing to file such a motion. Id. at 181-82.
¶9 Fillmore, therefore, does not undermine the long-standing rule that, in order to state a colorable claim that counsel was ineffective in failing to file a motion to suppress, the defendant must show "that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence." State v. Reasoner, 154 Ariz. 377, 382-83 (App. 1987) (quoting Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)).
¶10 Even if we assume without deciding that the officer's search here exceeded the consent given, we cannot say that Mendez's claim was meritorious. The officer had consent to enter the vehicle. Once he opened the door, he immediately saw the glasses case, which he testified he knew from his "training and experience" was a container that "can be used to hide drug paraphernalia and illegal drugs." This was sufficient to provide probable cause to extend the scope of the search beyond Mendez's consent. See State v. Swanson, 172 Ariz. 579, 585 (App. 1992) ("Probable cause gives an officer the constitutional authority to search areas of the vehicle outside the scope of the suspect's consent.").
¶11 The trial court thus correctly concluded a suppression motion would have failed. As a result, we disagree with Mendez's claims on review that the court abused its discretion in determining he had not shown counsel's performance fell below prevailing professional norms or that he was prejudiced by the failure to file such a motion. See State v. Ring, 131 Ariz. 374, 377 (1982) ("Failure to argue frivolous or groundless matters does not make counsel ineffective.").
¶12 Mendez also contends "the trial court applied an incorrect, more stringent legal standard" in rejecting his claim. He bases this argument on the court's statement that he could not "show that a Motion to Suppress would have been successful." Quoting State v. Berryman, 178 Ariz. 617, 622 (App. 1994), Mendez asserts that to state a colorable claim, he instead needed to show only "a reasonable likelihood" that the motion would have been granted.
¶13 In Kimmelman, the Supreme Court clarified that when a claim of ineffective assistance of counsel is premised on the failure to competently litigate a Fourth Amendment claim, "the defendant must also prove," in addition to showing deficient performance, that the proposed motion to suppress "is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice." 477 U.S. at 375 (emphasis added). Arizona caselaw, including the court in Berryman, has relied on Kimmelman. See Berryman, 178 Ariz. at 622; see also Fillmore, 187 Ariz. at 182; Reasoner, 154 Ariz. at 383. This court, however, has occasionally applied the "reasonable likelihood" or "reasonable probability" standard applicable to determining Strickland prejudice to the question whether a motion is meritorious under Kimmelman. See, e.g., State v. Smith, 244 Ariz. 482, ¶ 11 (App. 2018); Berryman, 178 Ariz. at 622. But see State v. Kasten, 170 Ariz. 224, 228-29 (App. 1991) ("would have been granted"). The parties here thus dispute whether Kimmelman requires a showing that a motion would have succeeded, or merely a reasonable probability of success.
¶14 We need not resolve that question. The trial court here cited Strickland and applied its standards in determining that Mendez had not shown deficient performance or prejudice. As stated above, under an ordinary Strickland analysis, counsel does not perform deficiently by failing to file a groundless motion. See Ring, 131 Ariz. at 377. The language in dispute amounts to a finding by the trial court that Mendez's motion to suppress would not have succeeded -i.e., that it was groundless. Because Mendez has failed to show deficient performance, any error by the court in failing to apply a reasonable probability standard to Kimmelman's requirement that an omitted motion be meritorious is immaterial. See Bennett, 213 Ariz. at ¶ 21 ("Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim.").
We further note that "the decision whether to seek a motion to suppress items of evidence is a matter of trial strategy." State v. Nirschel, 155 Ariz. 206, 208 (1987). And "disagreements in trial strategy will not support a claim of ineffective assistance of counsel, provided the challenged conduct has some reasoned basis." Id. For the reasons stated above, Mendez has not shown that counsel's decisions were not tactical, "but, rather, revealed ineptitude, inexperience or lack of preparation." State v. Goswick, 142 Ariz. 582, 586 (1984).
¶15 We grant the petition for review but deny relief.