Opinion
2 CA-CR 2012-0418-PR
02-14-2013
THE STATE OF ARIZONA, Respondent, v. JACK OWENS, Petitioner.
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20084919
Honorable Terry L. Chandler, Judge
REVIEW GRANTED; RELIEF DENIED
Jack Owens Kingman
In Propria Persona
ECKERSTROM, Presiding Judge. ¶1 Jack Owens petitions this court for review of the trial court's order summarily denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Owens has not met his burden of establishing such abuse here. ¶2 Owens was convicted after a jury trial of theft of a means of transportation and possession of burglary tools and was sentenced to enhanced and presumptive, concurrent prison terms, the longest of which was 11.25 years. We affirmed his convictions and sentences on appeal. State v. Owens, No. 2 CA-CR 2010-0042 (memorandum decision filed Nov. 3, 2010). Owens filed a notice of post-conviction relief, and appointed counsel filed a notice stating she had reviewed the record but had discovered no "meritorious Rule 32 grounds for relief." ¶3 In his subsequent pro se petition for post-conviction relief, Owens argued his trial counsel had been ineffective because he had recommended that Owens admit his previous convictions, did not investigate whether the admitted prior convictions were "valid," failed to provide Owens with a copy of his presentence report, did not investigate a potential witness, and did not investigate whether the state had tampered with evidence. Owens further asserted the prosecutor had committed misconduct by presenting evidence of his prior convictions at trial. The trial court summarily denied relief. It concluded Owens had not demonstrated prejudice resulting from counsel's purported errors regarding sentencing or counsel's alleged failure to investigate a potential witness. It further determined that Owens's claims regarding evidence tampering and prosecutorial misconduct were precluded because they had been adjudicated on direct appeal. ¶4 On review, Owens repeats the claims made below and asserts the trial court erred in finding two of these claims precluded. We agree with Owens that Rule 32.2 does not bar his claim that counsel had been ineffective in failing to investigate whether the state had tampered with certain evidence. Relevant here, a claim is precluded and cannot be raised in a post-conviction relief proceeding if it was "[f]inally adjudicated on the merits on appeal." Ariz. R. Crim. P. 32.2(a)(2). Owens asserted on direct appeal that the state had tampered with evidence by adding a fourth key to a key ring found in his possession, described in police reports as having only three keys. A photograph of the key ring, with a key inserted in a stolen vehicle's ignition, showed four keys, and a police officer described the four keys at trial. We rejected Owens's argument, concluding the "minor discrepancy" between the physical evidence and police report did "not suggest the evidence had been altered," and noting a defendant must "'offer proof of actual change in the evidence[] or show the evidence has, indeed, been tampered with'" to render the evidence inadmissible. Owens, No. 2 CA-CR 2010-0042, ¶ 6, quoting State v. Ritchey, 107 Ariz. 552, 557, 490 P.2d 558, 563 (1971). But a claim of ineffective assistance of counsel cannot be raised on direct appeal. State v. Spreitz, 202 Ariz. 1, ¶ 9, 39 P.3d 525, 527 (2002). Thus, our decision on appeal does not preclude Owens's claim that his trial counsel should have investigated the discrepancy and, had he done so, might have uncovered evidence of tampering. ¶5 We nonetheless conclude the trial court did not abuse its discretion in summarily rejecting Owens's claim. Cf. State v. Haight-Gyuro, 218 Ariz. 356, n.5, 186 P.3d 33, 37 n.5 (App. 2008) (reviewing court may affirm trial court if correct for any reason supported by record). Generally, "[t]o 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, 146 P.3d 63, 68 (2006). That is, he must show that "if the allegations are true, [they] might have changed the outcome." State v. Runningeagle, 176 Ariz. 59, 63, 859 P.2d 169, 173 (1993). "Proof of ineffectiveness must be a demonstrable reality rather than a matter of speculation." State v. Meeker, 143 Ariz. 256, 264, 693 P.2d 911, 919 (1984). Even if we assume, without deciding, that counsel's failure to investigate fell below prevailing professional norms, Owens has not demonstrated resulting prejudice. He has identified no evidence suggesting investigation by counsel would have revealed proof of an actual change in the evidence or of tampering. See Ritchey, 107 Ariz. at 557, 490 P.2d at 563. ¶6 Owens further asserts his claim of prosecutorial misconduct is not precluded because it also "constitute[s] ineffective assistance of counsel." But he did not raise this claim below and, accordingly, we do not address it. See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980) (appellate court will not consider on review claims not raised below); see also Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review must contain "issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review"). As to Owens's remaining claims, we conclude the trial court correctly resolved them in a thorough and well-reasoned minute entry, which we adopt. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993) (when trial court correctly rules 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"). ¶7 For the reasons stated, although we grant review, relief is denied.
The four keys were described at trial as being consistent with so-called "jiggle keys" used to steal vehicles. Owens asserted in his petition below that the fourth key was added to "[e]nhance, visually that [the three original] keys . . . were a set of jiggle[ keys]."
____________________
PETER J. ECKERSTROM, Presiding Judge
CONCURRING: ____________________
JOSEPH W. HOWARD, Chief Judge
____________________
J. WILLIAM BRAMMER, JR., Judge
A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Order filed December 12, 2012.
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