Opinion
2 CA-CR 2022-0063-PR
12-15-2022
The State of Arizona, Respondent, v. Adam Robert Nuñez, Petitioner.
Kent P. Volkmer, Pinal County Attorney By Geraldine L. Roll, Deputy County Attorney, Florence Counsel for Respondent Adam Robert Nuñez, Safford In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pinal County No. CR201800308 The Honorable Christopher J. O'Neil, Judge
Kent P. Volkmer, Pinal County Attorney By Geraldine L. Roll, Deputy County Attorney, Florence Counsel for Respondent
Adam Robert Nuñez, Safford In Propria Persona
Presiding Judge Eppich authored the decision of the Court, in which Vice Chief Judge Staring and Judge Brearcliffe concurred.
MEMORANDUM DECISION
EPPICH, Presiding Judge
¶1 Petitioner Adam Nuñez seeks review of the trial court's order dismissing his petitions 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. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Nuñez has not sustained his burden of establishing such abuse here.
The trial court granted counsel's motion requesting permission for Nuñez to file a supplemental pro se Rule 32 petition to present "other claims" not presented in counsel's petition.
¶2 After a jury trial, Nuñez was convicted of possession of methamphetamine and drug paraphernalia. The trial court imposed concurrent prison terms, the longer of which is ten years. This court affirmed Nuñez's convictions and sentences on appeal. State v. Nuñez, No. 2 CA-CR 2019-0165 (Ariz. App. Apr. 28, 2020) (mem. decision).
¶3 Nuñez then sought post-conviction relief. Counsel asserted that trial counsel had been ineffective in failing to "prepare, develop, and create an appropriate record" to sufficiently argue whether Nuñez consented to the search of his person during a traffic stop, which was the subject of a pretrial motion to suppress. In his pro se supplemental petition, Nuñez further maintained: the traffic stop was illegal; the deputy unlawfully extended the traffic stop to investigate Nuñez's gang affiliation; law enforcement's call log record suggested discrepancies in the testimony of the deputy at the suppression hearing; and, trial and appellate counsel had been ineffective for failing to adequately raise several of these issues. Both Nuñez and counsel requested an evidentiary hearing. The trial court summarily dismissed the petitions. This pro se petition for review followed.
In its ruling, the trial court noted, "To the extent the supplemental petition raises these claims as independent legal arguments that were raised or could have been raised on appeal, these are precluded. The Court will, however, consider the claims as purported instances of deficient conduct by Mr. Nuñez's counsel both at trial and on appeal."
¶4On review, Nuñez contends the trial court abused its discretion in rejecting his claims without conducting an evidentiary hearing, essentially summarizing the arguments he raised below. He provides minimal, if any, meaningful references to the court's ruling, apparently arguing he disagrees with the reasoning. See Ariz. R. Crim. P. 32.16(c)(2)(D) (petition for review must contain "reasons why the appellate court should grant the petition"). In his reply to the state's response to his petition for review, Nuñez further asserts because trial counsel failed to develop the record for his arguments at the suppression hearing, appellate counsel "could not fully argue" the related issues on appeal.
¶5 "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, ¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). In a proceeding for post-conviction relief, a defendant is entitled to an evidentiary hearing upon establishing a colorable claim - that is, one that, if the allegations are true, probably would have changed the verdict or sentence. State v. Amaral, 239 Ariz. 217, ¶¶ 10-11 (2016). Whether counsel's performance fell below objectively reasonable standards requires consideration of the prevailing professional norms. State v. Kolmann, 239 Ariz. 157, ¶ 9 (2016). And a defendant establishes prejudice if he can show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Bennett, 213 Ariz. 562, ¶ 25 (quoting Strickland, 466 U.S. at 694). There is "[a] strong presumption" that counsel "provided effective assistance." State v. Febles, 210 Ariz. 589, ¶ 20 (App. 2005).
¶6 A number of Nuñez's claims relate to his assertion that trial counsel was ineffective for failing to adequately prepare for and represent him at the hearing on the motion to suppress. However, as the state points out in its response to the petition for review, Nuñez testified against the advice of counsel at the suppression hearing, providing a different version of the incident than that presented by the deputy. In fact, in denying the motion to suppress, the trial court specifically "found the deputy's testimony very credible," noting he had "showed a lot of care in verifying whether the consent [to the search] was consensual by stopping in the middle of it when [Nuñez] made a noise or a sound and movement to indicate to the deputy there was possibly a withdraw of consent," and then "reengag[ing] with [Nuñez] to make sure that he was consenting to the search."
In our decision on appeal, we pointed out that although Nuñez had disputed whether he was handcuffed or held at gunpoint during the stop and "other aspects of the deputy's testimony, we defer to the trial court's finding that the deputy was credible." Nuñez, No. 2 CA-CR 2019-0165, ¶ 12 & n.3.
¶7 The trial court further stated that the questions the deputy had asked Nuñez during the stop were "reasonable under the totality of the circumstances; specifically, a person being in the road very late at night in a dark area and then some indication that there was gang affiliation." And, on appeal, we concluded the court had correctly denied the motion to suppress, specifically determining the stop was not unnecessarily prolonged, the deputy's questions were appropriate, no Fourth Amendment violation occurred, and Nuñez voluntarily consented to the search of his person. Nuñez, No. 2 CA-CR 2019-0165, ¶¶ 9-13.
¶8 The trial court clearly identified the claims Nuñez had raised and resolved them correctly in a thorough, well-reasoned ruling, which we adopt. See State v. Whipple, 177 Ariz. 272, 274 (App. 1993) (when trial court has correctly ruled on issues raised "in a fashion that will allow any court in the future to understand the resolution[, n]o useful purpose would be served by this court rehashing the trial court's correct ruling in a written decision").
¶9 Accordingly, although we grant the petition for review, we deny relief.