Opinion
No. 2 CA-CR 2015-0158-PR
08-05-2015
THE STATE OF ARIZONA, Respondent, v. TY COLTON MORENO, Petitioner.
COUNSEL Law Office of Henry Jacobs, PLLC, Tucson By Henry Jacobs 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NOT FOR PUBLICATION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. CR20124777001
The Honorable Kenneth Lee, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Law Office of Henry Jacobs, PLLC, Tucson
By Henry Jacobs
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Kelly concurred. VÁSQUEZ, Presiding Judge:
The Hon. Virginia C. Kelly, 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 Ty Moreno seeks review of the trial court's ruling 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 abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Moreno has not met his burden of demonstrating such abuse here.
¶2 After a jury trial in which he waived his right to counsel, Moreno was convicted of theft, fleeing from a law enforcement vehicle, and criminal damage. The trial court sentenced him to concurrent, five-year prison terms for each offense. He then sought post-conviction relief, arguing that his trial counsel had been ineffective in failing to challenge his competency to waive his right to counsel and in failing to file a "[]sufficient" request for a mental-health evaluation pursuant to Rule 11, Ariz. R. Crim. P.
¶3 The trial court summarily denied relief. It noted that counsel had made the court aware of Moreno's mental-health issues before Moreno waived his right to counsel and that Moreno had not identified any additional information that counsel should have submitted, either in support of a claim of incompetence or in a Rule 11 request. The court additionally observed that nothing about its colloquy with Moreno or his conduct during trial suggested he was not competent to represent himself. This petition for review followed the court's denial of Moreno's motion for rehearing.
¶4 To establish 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, 146 P.3d 63, 68 (2006); see also Strickland v. Washington, 466 U.S. 668, 687-88 (1984). On review, Moreno argues the trial court erred in determining the same standard applied to competence to stand trial and competence to waive counsel and in concluding Moreno had not established prejudice. Because it is dispositive of Moreno's claim, we address only his argument related to the court's prejudice finding.
¶5 To demonstrate prejudice, Moreno was required to show there is a reasonable probability that "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. Moreno asserts the trial court required him "to do the impossible," that is, "prove . . . what the trial court would have done if it had been in possession of appropriate mental health evidence." But Moreno misapprehends both the court's ruling and the prejudice requirement.
¶6 A defendant seeking to represent himself "must understand (1) the nature of the charges against him, (2) the dangers and disadvantages of self-representation, and (3) the possible punishment upon conviction." State v. Dann, 220 Ariz. 351, ¶ 24, 207 P.3d 604, 613 (2009). The trial court correctly observed that Moreno had not identified any evidence showing he was not competent to waive his right to counsel and that his mere identification of various mental-illness diagnoses was insufficient to do so. See State v. Cornell, 179 Ariz. 314, 322-23, 878 P.2d 1352, 1360-61 (1994) (existence of mental illness does not preclude waiver of right to counsel). Absent such evidence, Moreno cannot show prejudice because he cannot show any possibility of a different result. See Strickland, 466 U.S. at 694.
¶7 As we understand his argument, however, Moreno additionally suggests that he has shown sufficient prejudice because it is possible the trial court did not "believe[]" the evidence of his mental-health diagnoses. In support of this argument, he cites Hinton v. Alabama, ___ U.S. ___, ___, 134 S. Ct. 1081, 1089-90 (2014), in which the United States Supreme Court determined that a defendant may have been prejudiced by counsel's failure to hire a "more qualified" forensics expert to testify because the jury did not believe the testimony of the less-qualified expert that counsel did retain. But Hinton has no application here—the court did not find incredible the evidence of Moreno's mental-health diagnoses; instead, it found that evidence insufficient to establish a reasonable probability that Moreno was not competent to waive his right to counsel.
¶8 Although we grant review, we deny relief.