Opinion
No. 2 CA-CR 2018-0351-PR
02-27-2019
THE STATE OF ARIZONA, Respondent, v. OMAR SAEID SIGLER, Petitioner.
Omar Saeid Sigler, San Luis In Propria Persona
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NOT FOR PUBLICATION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. 31.19(e). Petition for Review from the Superior Court in Cochise County
No. CR201600333
The Honorable John F. Kelliher Jr., Judge
REVIEW GRANTED; RELIEF DENIED
Omar Saeid Sigler, San Luis
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Omar Sigler seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Sigler has not shown such abuse here.
¶2 After a bench trial, Sigler was found guilty of possession of a dangerous drug for sale; the trial court sentenced him to an eight-year prison term. Sigler had moved to suppress the drug evidence, arguing the encounter with a police officer that led to his arrest had been an illegal seizure. In our decision on appeal, we described the facts of that encounter as follows:
In March 2015, Sierra Vista Police Department Officer Brant was conducting his patrol duties when he thought he saw S.S. walking down the street. Brant knew that S.S. had several criminal charges pending and that a warrant for his arrest had been issued. He parked his patrol car, turned on his rear emergency lights "to ensure no other vehicle collided with" it, and walked about half a block towards Sigler, who was walking towards Brant. Once he was within several feet of Sigler, Brant realized he was not S.S. and told Sigler about the misidentification. Sigler commented that many people had mistaken him for S.S. in the past, and the two began a "casual conversation."
About a minute later, Brant said, "While I'm out with you, do you mind if I check your [identification]?" As they continued conversing,
Sigler briefly turned around to reach for something and, when he turned back, handed his identification to Brant. As he did so, Brant noticed that a small, black, golf ball-sized object fell from the area of Sigler's waist to the ground. Brant believed the object "was potentially contraband" and asked Sigler to sit on the curb while he called for assistance. After additional officers arrived, Brant investigated the object, recognized it contained a substance "consistent with methamphetamine," and arrested Sigler.
¶3 The trial court determined that an illegal seizure had occurred when Brant recognized Sigler was not S.S., but further concluded that a reasonable person would have felt free to leave at the time Brant asked for his identification. Thus, because Brant had reasonable suspicion to continue the stop based on Sigler having dropped apparent contraband, the court denied the motion to suppress. Sigler raised the issue on appeal. We determined the entire encounter had been consensual and, thus, the trial court had not erred by denying the motion to dismiss. Accordingly, we affirmed Sigler's conviction and sentence. State v. Sigler, No. 2 CA-CR 2017-0077 (Ariz. App. Nov. 8, 2017) (mem. decision).
¶4 Sigler then sought post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but found no "meritorious issue of law or fact" to raise pursuant to Rule 32. Sigler filed a pro se petition arguing his trial counsel had been ineffective in failing to "competently" argue Brant's discovery of the evidence was not "attenuated [from] the illegal action" by Brant, in response to the state's reference to the attenuation doctrine. The trial court summarily dismissed the proceeding, and this petition for review followed.
The attenuation doctrine applies "when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that 'the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.'" Utah v. Strieff, ___ U.S. ___, ___, 136 S. Ct. 2056, 2061 (2016) (quoting Hudson v. Michigan, 547 U.S. 586, 593 (2006)).
¶5 On review, Sigler asserts he is entitled to an evidentiary hearing on his claim. A defendant is entitled to a hearing if he presents a colorable claim for relief, that is, "he has alleged facts which, if true, would probably have changed the verdict or sentence." State v. Amaral, 239 Ariz. 217, ¶¶ 10-11 (2016). "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); see also Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶6 As the state pointed out in its response below, whether the attenuation doctrine applies is immaterial in light of our decision on appeal that the entire encounter was consensual. See State v. Hummons, 227 Ariz. 78, ¶¶ 7-9 (2011). And, even were it proper to disregard our ruling on appeal in evaluating Sigler's claim, he has not developed any meaningful argument that counsel would have prevailed in the trial court even had he argued the issue more thoroughly. Thus, Sigler has not demonstrated any likelihood the result of his proceeding would have been different. The trial court did not err in summarily rejecting his claim.
¶7 Although we grant review, relief is denied.