Opinion
No. 2 CA-CR 2014-0097-PR
06-23-2014
THE STATE OF ARIZONA, Respondent, v. PHILLIP MITCHELL, Petitioner.
William G. Montgomery, Maricopa County Attorney By Shaheen P. Torgoley, Deputy County Attorney, Phoenix Counsel for Respondent Stephen M. Johnson, Phoenix 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Maricopa County
No. CR2006009621001DT
The Honorable Michael D. Gordon, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By Shaheen P. Torgoley, Deputy County Attorney, Phoenix
Counsel for Respondent
Stephen M. Johnson, Phoenix
Counsel for Petitioner
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Brammer concurred. ESPINO SA, Judge:
The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 Following a jury trial, Phillip Mitchell was convicted of four counts of molestation of a child, two counts of sexual conduct with a minor under the age of fifteen, and sexual abuse of a minor under the age of fifteen, all dangerous crimes against children. The trial court sentenced Mitchell to a combination of consecutive and concurrent, presumptive prison terms, including two consecutive terms of life imprisonment. We affirmed the convictions and sentences on appeal. State v. Mitchell, No. 1 CA-CR 08-0012 (memorandum decision filed Aug. 27, 2009).
¶2 Mitchell now seeks review of the trial court's summary dismissal of his petition for post-conviction relief and motion for rehearing, filed pursuant to Rule 32, Ariz. R. Crim. P., asking that we remand "for an evidentiary hearing" and "for a new trial and new sentencing." We will not disturb the court's ruling unless it has abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We find no such abuse here.
Although Mitchell cites the trial court's January 14, 2013, ruling denying his motion for rehearing as the order from which he seeks review, it is clear from his petition for review that he also is challenging the court's August 6, 2012, order dismissing his petition. Additionally, because Mitchell improperly presented what he characterizes on review as "further examples of irregularities from the Grand Jury" for the first time in his motion for rehearing, we do not address the court's denial of that motion. See Ariz. R. Crim. P. 32.9(a) (party aggrieved by trial court's final decision may file motion for rehearing "setting forth in detail the grounds wherein it is believed the court erred").
¶3 We initially note that, rather than explaining in his petition for review how the trial court erred by denying his claims, Mitchell instead repeats, essentially word-for-word, the arguments he raised in his petition below. See Ariz. R. Crim. P. 32.9(c)(1)(iv) (petition for review shall contain "reasons why the petition should be granted"). In our discretion, we nonetheless address his claims.
¶4 Mitchell first argues the trial court abused its discretion by "amending the indictment over defense counsel's objection, prior to defense counsel later withdrawing the objection and entering into a stipulation." Although the court initially granted the state's motion to amend all of the dates in the indictment over Mitchell's objection, in response to the court's subsequent concerns about that ruling, the state withdrew its motion and the parties instead stipulated to the amendment of limited counts. Because we addressed a related claim regarding the "Location and Dates on the Indictment" on appeal, see Mitchell, No. 1 CA-CR 08-0012, ¶¶ 22-24, the court correctly found Mitchell's claim precluded pursuant to Rule 32.2(a)(2). Additionally, to the extent the claim Mitchell now raises is not precisely the same as the one he raised on appeal, because he could have raised it then, he has waived the opportunity to do so now. See Ariz. R. Crim. P. 32.2(a)(3).
¶5 Mitchell next raises two claims of ineffective assistance of trial counsel. In order to state a colorable claim, a defendant must establish that counsel's performance fell below an objectively reasonable professional standard and that the deficient performance was prejudicial to the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985).
¶6 Mitchell argues that, "by withdrawing his objection to the State's motion to amend the indictment, the State was allowed to change significant dates and times of allegations in this matter," thereby impeding "his ability to either enter into a plea agreement, or help prepare for trial." Notably, Mitchell has failed to explain how counsel's stipulation to technical changes to the indictmentprejudiced him or why those changes were "significant." See Ariz. R. Crim. P. 13.5(b) ("charge may be amended only to . . . remedy . . . technical defects, unless the defendant consents to the amendment. The charging document shall be deemed amended to conform to the evidence adduced at any court proceeding."); see also State v. Bruce, 125 Ariz. 421, 423, 610 P.2d 55, 57 (1980) (defect in indictment considered technical when its amendment does not operate to change nature of offense charged or prejudice defendant).
We found on appeal:
Here, upon the State's motion to amend, the superior court corrected a typographical error in the indictment for Counts . . . 9 and 10 [and 11] by changing the date of the offenses [from on or between June 23, 2000, to June 22, 2000,] to "on or between the 23rd day of June, 2000 and the 22nd day of June, 2001." The court also corrected the range for Count 12 [from on or between June 23, 1998, to June 23, 2000,] to "on or about the 23rd day of June, 1999 and the 22nd day of June, 2001." Allowing the jury to convict Mitchell without determining the exact location or specific dates of the offenses was not prejudicial to Mitchell because it did not deprive him of any notice of the charges.Mitchell, No. 1 CA-CR 08-0012, ¶ 24.
¶7 Moreover, we concluded on appeal that sufficient evidence supported Mitchell's convictions and noted "[t]he statutes only require the State to prove Mitchell committed the offenses with the requisite state of mind; the location and exact dates are not necessary elements of child molestation, sexual conduct, and sexual abuse of a minor." Mitchell, No. 1 CA-CR 08-0012, ¶ 23. For all of these reasons, we conclude the trial court correctly found "the withdrawal of the objection to the Motion to Amend was neither deficient performance nor is there a reasonable probability that this conduct would have affected the outcome of the trial."
¶8 Mitchell also contends that, because his attorneys failed to file a motion to remand the indictment to the grand jury to "raise[] the issues of date specificity and the number of cases the State ultimately dismissed during trial," he "lost an opportunity to attack the indictment prior to trial." Mitchell did not provide any cognizable legal or factual argument supporting this claim in his petition below, nor has he done so on review. See Ariz. R. Crim. P. 32.9(c)(1)(iv) (petition for review must contain "reasons why the petition should be granted"). Accordingly, the trial court correctly denied his claim, and concluded that in the absence of any argument suggesting a motion for remand would have been successful, "the attorney's conduct was not deficient and [Mitchell] has failed to demonstrate that there is a reasonable probability that a motion for remand would have had any impact on the outcome of the trial."
Mitchell states that three of his four trial attorneys failed to request an extension to file a motion to remand. We thus infer he is arguing that all three attorneys were ineffective.
¶9 In accordance with Rule 32.6(c), the trial court first identified those claims in Mitchell's petition for post-conviction relief that were precluded. It then determined no remaining claim was colorable. Mitchell has not shown the court abused its discretion in summarily dismissing his petition. Therefore, although review is granted, relief is denied.