Opinion
1 CA-CR 23-0563 PRPC
12-17-2024
STATE OF ARIZONA, Respondent, v. JACK BUCHANAN SCALPH, Petitioner.
Maricopa County Attorney's Office, Phoenix By Philip D. Garrow Counsel for Respondent. Law Office of Katia Mehu, Phoenix By Katia Mehu 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court.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. CR2016-005574-001 The Honorable Kristin Culbertson, Judge.
COUNSEL
Maricopa County Attorney's Office, Phoenix By Philip D. Garrow Counsel for Respondent.
Law Office of Katia Mehu, Phoenix By Katia Mehu Counsel for Petitioner.
Judge David D. Weinzweig delivered the decision of the Court, in which Presiding Judge Brian Y. Furuya and Judge James B. Morse Jr. joined.
MEMORANDUM DECISION
David D. Weinzweig, Judge
¶1 Jack Buchanan Scalph petitions this court for review from the dismissal of his petition for post-conviction relief ("PCR") filed under Arizona Rule of Criminal Procedure 32. We grant review and deny relief for the following reasons.
FACTUAL AND PROCEDURAL HISTORY
¶2 A jury found Scalph guilty of possession of dangerous drugs for sale, possession of marijuana for sale, possession of drug paraphernalia and four counts of misconduct involving weapons. We affirmed his convictions and sentences on direct appeal. State v. Scalph, 245 Ariz. 177, 178, ¶ 3 (App. 2018); State v. Scalph, 1 CA-CR 17-0525, 2018 WL 3468662 (Ariz. App. July 19, 2018) (mem. decision).
¶3 Scalph timely petitioned for post-conviction relief. The superior court summarily dismissed his petition. Scalph challenges that decision here, arguing: (1) the State violated his constitutional rights when it searched his residence, (2) both his trial and appellate attorneys provided ineffective assistance of counsel and (3) the superior court deprived him of due process by incorporating the State's response by reference.
DISCUSSION
¶4 We review the superior court's denial of relief for an abuse of discretion, "which occurs if the court makes an error of law or fails to adequately investigate the facts necessary to support its decision." State v. Bigger, 251 Ariz. 402, 407, ¶ 6 (2021).
I. Fourth Amendment.
¶5 Scalph's Fourth Amendment claim stems from two searches of his residence. In the first, Adult Probation Officers searched his home without a warrant, pursuant to terms of Scalph's probation agreement. Police obtained a warrant to further search his house after the Adult Probation Officers found drugs, drug paraphernalia, guns and ammunition.
¶6 Scalph moved to suppress all evidence found in those searches, arguing they violated his constitutional rights. See U.S. Const. amends. IV, XIV; Ariz. Const. art. 2, § 8. The superior court denied that motion after an evidentiary hearing.
¶7 In his petition for review, Scalph argues he did not waive his constitutional claims even though he did not raise them on direct appeal. We discern no abuse of discretion. The superior court properly dismissed those claims because Scalph could have raised them on direct appeal. See Ariz. R. Crim. P. 32.2(a)(3). Rule 32.2(a) explicitly precludes "relief under Rule 32.1(a)." See Ariz. R. Crim. P. 32.1(a), 32.2(a). Nor are Scalph's Fourth Amendment claims "of sufficient constitutional magnitude" that waiver must be knowing, voluntary and personal. See Ariz. R. Crim. P. 32.2(a)(3); Stewart v. Smith, 202 Ariz. 446, 449-50, ¶¶ 8-10 (2002) (listing right to counsel, right to jury trial and right to twelve-person jury as rights of sufficient constitutional magnitude).
II. Ineffective Assistance of Counsel.
¶8 To prove a claim for ineffective assistance of counsel, Scalph had to "show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced [him]." State v. Bennett, 213 Ariz. 562, 567, ¶ 21 (2006). He demonstrated neither.
¶9 Scalph argues his trial counsel performed deficiently by not obtaining surveillance video of his residence recorded around the time of the first search. That argument fails because the video did not materially change his suppression argument. See Strickland v. Washington, 466 U.S. 668, 690-91 (1984) ("[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation."); State v. Henry, 176 Ariz. 569, 585 (1993) (requiring defendant to show, in an ineffective assistance of counsel claim based on deficient investigation, how a better investigation "would have made a difference").
¶10 Scalph argues his appellate counsel performed deficiently because he did not appeal the denial of his motion to suppress. That theory fails because Scalph has not shown a reasonable probability that the argument would have succeeded on appeal. Bennett, 213 Ariz. at 568, ¶ 25. Law enforcement conducted a lawful and reasonable probation search. See State v. Adair, 241 Ariz. 58, 59, ¶ 1 (2016) (holding a warrantless probation search "complies with the Fourth Amendment if it is reasonable under the totality of the circumstances"); State v. Turner, 142 Ariz. 138, 143 (App. 1984) (holding a probation search is "not rendered invalid by the presence of police," their participation in the search, or "because the information which prompted [the search] originated with the police").
III. Due Process.
¶11 Scalph contends the superior court deprived him of due process when it adopted the State's response by reference in its final order, and dismissed his petition without reviewing the video evidence or report describing the extraction of the video files.
¶12 We disagree. The court made the necessary findings-it simply referenced the State's response to indicate it agreed with the State's argument. After discovering that the court had not received the video evidence, Scalph resubmitted the evidence and the court reviewed it.
CONCLUSION
¶13 We grant review but deny relief.