Opinion
No. 2 CA-CR 2013-0447-PR
01-15-2014
THE STATE OF ARIZONA, Respondent, v. JACKIE LARAE SCOTT, Petitioner.
Sheila Sullivan Polk, Yavapai County Attorney By Dana E. Owens, Deputy County Attorney, Prescott Counsel for Respondent C. Kenneth Ray II, P.C., Prescott By C. Kenneth Ray II 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NOT FOR PUBLICATION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 Yavapai County
No. P1300CR201000282
The Honorable Tina R. Ainley, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Sheila Sullivan Polk, Yavapai County Attorney
By Dana E. Owens, Deputy County Attorney, Prescott
Counsel for Respondent
C. Kenneth Ray II, P.C., Prescott
By C. Kenneth Ray II
Counsel for Petitioner
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Petitioner Jackie Scott seeks review of the trial court's order denying her petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Scott has not sustained her burden of establishing such abuse here.
¶2 After a jury trial, Scott was convicted of two counts of possession of a dangerous drug, methamphetamine, for sale, and two counts of possession of methamphetamine drug paraphernalia. The trial court sentenced her to mitigated, concurrent sentences, the longest of which was five years. Her convictions and sentences were affirmed on appeal. State v. Scott, No. 1 CA-CR 10-0811 (memorandum decision filed Nov. 3, 2011).
¶3 Scott initiated a proceeding for post-conviction relief, arguing in her petition that her trial counsel was ineffective in failing to move to preclude certain evidence, to move for disclosure of the identity of an informant, to seek disclosure of information about the informant and the detective who purchased the drugs from her, or to move for dismissal on the basis of a Brady violation or entrapment. The trial court summarily denied relief.
Brady v. Maryland, 373 U.S. 83 (1963).
¶4 On review, Scott repeats several of her arguments from below, particularly her claims of ineffective assistance of counsel, and argues the trial court abused its discretion in rejecting them. To present a colorable claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient under prevailing professional norms and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Ysea, 191 Ariz. 372, ¶ 15, 956 P.2d 499, 504 (1998). "A colorable claim of post-conviction relief is 'one that, if the allegations are true, might have changed the outcome.'" State v. Jackson, 209 Ariz. 13, ¶ 2, 97 P.3d 113, 114 (App. 2004), quoting State v. Runningeagle, 176 Ariz. 59, 63, 859 P.2d 169, 173 (1993). And if a defendant fails to make a sufficient showing on either element of the Strickland test, the court need not determine whether the other element was satisfied. State v. Salazar, 146 Ariz. 540, 541, 707 P.2d 944, 945 (1985).
We do not address the claims of ineffective assistance of counsel Scott fails to develop on review. See State v. Rodriguez, 227 Ariz. 58, n.4, 251 P.3d 1045, 1048 n.4 (App. 2010) (declining to address argument not raised in petition for review); see also State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim.").
¶5 Scott maintains the court wrongly concluded she failed to establish any prejudice arising from counsel's failure to file a motion to preclude evidence of certain other acts or to object to evidence of the presence of children during the offenses. We agree with the trial court, however, that in light of the strong testimonial and audio-recorded evidence of Scott's guilt, she has not established prejudice arising from counsel's omissions, even assuming counsel's performance was deficient. And, as the trial court also pointed out, this court concluded on appeal that the admission of some of the challenged evidence was not error.
¶6 Scott also raises several arguments in relation to the disclosure of the identity of the state's confidential informant and trial counsel's failure to make a motion for such disclosure before trial. To the extent Scott asserts claims that the state wrongfully failed to disclose the informant's identity, those claims are precluded because they could have been raised on appeal. See Ariz. R. Crim. P. 32.2(a)(1).
¶7 As to Scott's claim of ineffective assistance of counsel on this point, we agree with the trial court that Scott has not established prejudice as a result of counsel's failure to seek more information about the confidential informant, who apparently was to some extent known to Scott and counsel. As the court pointed out, Scott has not shown "how, or in what way, the identity of the confidential reliable informant would have been critical to the defense or in any way materially contradict[ed] the testimony of the undercover officer." This is particularly so in light of the audio recordings of the offenses and Scott's statements over the jail telephone expressing confusion as to how she could be arrested for possession when she "had to go get [the methamphetamine]" from someone else before giving it to the undercover officer.
¶8 Additionally, in his letter responding to Rule 32 counsel's inquiry about the case, trial counsel made clear that he had decided not to seek further information about the confidential informant as a matter of strategy. He stated that he believed the informant "was immaterial" based on his "theory of the case," and he had therefore decided to "pursue[] other avenues instead" of "wast[ing] time and effort going after" the informant. Trial counsel is presumed to have acted properly unless a petitioner can show that counsel's decisions were not tactical, "but, rather, revealed ineptitude, inexperience or lack of preparation." State v. Goswick, 142 Ariz. 582, 586, 691 P.2d 673, 677 (1984). "Matters of trial strategy and tactics are committed to defense counsel's judgment" and cannot serve as the basis for a claim of ineffective assistance of counsel. State v. Beaty, 158 Ariz. 232, 250, 762 P.2d 519, 537 (1988). Scott has not established that counsel acted for other than tactical reasons here.
¶9 Finally, Scott asserts that our supreme court's decision in Canion v. Cole, 210 Ariz. 598, 115 P.3d 1261 (2005), "conflicts with the duty of Post-Conviction Relief counsel to fully investigate for any and all colorable claims pursuant to Rule 32.2(c)(2)." But "'[t]his court is bound by decisions of the Arizona Supreme Court and has no authority to overturn or refuse to follow its decisions.'" State v. McPherson, 228 Ariz. 557, ¶ 13, 269 P.3d 1181, 1186 (App. 2012), quoting State v. Long, 207 Ariz. 140, ¶ 23, 83 P.3d 618, 623 (App. 2004).
¶10 For the reasons stated above, although we grant the petition for review, relief is denied.