Opinion
No. 2 CA-CR 2014-0386-PR
12-04-2014
THE STATE OF ARIZONA, Respondent, v. JON SIDNEY SOLNICKA, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Susan L. Luder, Deputy County Attorney, Phoenix Counsel for Respondent The Nolan Law Firm, P.L.L.C., Mesa By Cari McConeghy Nolan 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 NOT FOR PUBLICATION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 Maricopa County
No. CR2007137104001DT
The Honorable L. Grant, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL William G. Montgomery, Maricopa County Attorney
By Susan L. Luder, Deputy County Attorney, Phoenix
Counsel for Respondent
The Nolan Law Firm, P.L.L.C., Mesa
By Cari McConeghy Nolan
Counsel for Petitioner
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 Jon Solnicka seeks review of the trial court's order 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). Solnicka has not met his burden of establishing such abuse here.
¶2 After a jury trial, Solnicka was convicted of three counts of child molestation and sentenced to consecutive prison terms totaling fifty-one years. His convictions and sentences were affirmed on appeal. State v. Solnicka, No. 1 CA-CR 08-1102 (memorandum decision filed Jan. 28, 2010). Solnicka sought post-conviction relief, raising numerous claims. He asserted his trial counsel was ineffective because she did not: (1) "object to numerous instances of prosecutorial misconduct and to mass quantities of inadmissible other act and hearsay evidence"; (2) "request a hearing and present evidence regarding one of the alleged victim's prior false allegations"; (3) "object to a flight instruction" or present additional evidence relevant to that instruction; or (4) "object to [Solnicka's] absence" during the exercise of peremptory strikes. He also claimed his appellate counsel was ineffective for failing to raise those arguments on appeal. Solnicka further argued that his speedy trial rights had been violated, that his absence during peremptory strikes violated his constitutional right to be present, and that he is actually innocent. Finally, Solnicka referred to an appendix attached to his petition, in which he raised several claims "that otherwise would not have been included in the Petition" but were included to permit him to comply with the requirement in "[t]he Arizona Rules of Criminal Procedure" that he aver "that all known claims for relief are raised" in the petition.
That requirement is not found in our criminal rules, but instead is found in A.R.S. § 13-4235.
¶3 The trial court summarily rejected Solnicka's claims except those related to his absence during peremptory strikes. It denied that claim after an evidentiary hearing, concluding Solnicka's trial counsel had the authority to waive his presence, relying on State v. Collins, 133 Ariz. 20, 648 P.2d 135 (App. 1982). This petition for review followed the court's denial of Solnicka's motion for rehearing.
¶4 On review, Solnicka first repeats his claim that his right to be present at trial was violated when the parties exercised peremptory strikes in his absence. This claim is precluded because it could have been raised on appeal. See Ariz. R. Crim. P. 32.2(a)(3). Solnicka, however, further asserts that his trial counsel was ineffective for failing to "make any on the record waiver of her client's right to be present." To prevail on a claim of ineffective assistance of counsel, Solnicka was required to demonstrate both that "1) trial counsel performed deficiently under prevailing professional norms; and 2) counsel's deficiency prejudiced the defendant." See State v. Ysea, 191 Ariz. 372, ¶ 15, 956 P.2d 499, 504 (1998).
¶5 Counsel may waive a defendant's right to be present during peremptory challenges, and may do so without consulting with the defendant. State v. Collins, 133 Ariz. 20, 23, 648 P.2d 135, 138 (App. 1982). And, despite Solnicka's contrary argument, such waiver may be implicit, as it was here. See id. at 22-23, 648 P.2d at 137-138. In short, Solnicka has not demonstrated that his trial counsel fell below prevailing professional norms by failing to expressly waive his presence, because an express waiver is not required. Solnicka's claim of ineffective assistance of appellate counsel also fails because, in light of Collins, an argument that Solnicka's right to be present was violated would not have been successful on appeal. See Ysea, 191 Ariz. 372, ¶ 15, 956 P.2d at 504.
Solnicka generally asserts the trial court should have granted him relief because the state did not respond to all of the claims raised in his petition for post-conviction relief. In support of this argument, he cites Rule 35.1, Ariz. R. Crim. P. But that rule merely describes the form of motions and the time of reply. Id. It does not provide, expressly or implicitly, that a trial court is required to grant a motion when the opposing party has failed to respond. Id. And, although a trial court (or this court) is permitted to treat the failure to respond as a confession of error, it is not required to do so. Lopez v. Kearney ex rel. County of Pima, 222 Ariz. 133, ¶ 10, 213 P.3d 282, 285 (App. 2009); see State ex rel. McDougall v. Superior Court, 174 Ariz. 450, 452, 850 P.2d 688, 690 (App. 1993). Finally, to the extent Solnicka argues that the state has confessed error by failing to respond to some of his claims on review, we decline to treat the state's somewhat cursory response to several of his claims as a confession of error.
¶6 Solnicka also lists his other claims of ineffective assistance of counsel, which chiefly concern counsel's purported failure to object to testimony and other evidence. Although he argues to the contrary, the conduct he describes falls within the panoply of tactical and strategic choices made by trial counsel. See generally State v. Moreno, 153 Ariz. 67, 69-70, 734 P.2d 609, 611-12 (App. 1986) (discussing tactical decisions by counsel involving objections and witnesses). "[W]e must presume 'counsel's conduct falls within the wide range of reasonable professional assistance' that 'might be considered sound trial strategy.'" State v. Denz, 232 Ariz. 441, ¶ 7, 306 P.3d 98, 101 (App. 2013), quoting Strickland v. Washington, 466 U.S. 668, 689 (1984). And "[d]isagreements as to trial strategy . . . will not support a claim of ineffective assistance of counsel as long as the challenged conduct could have some reasoned basis." State v. Meeker, 143 Ariz. 256, 260, 693 P.2d 911, 915 (1984). Solnicka's conclusory assertion that "there is no basis to conclude" that counsel's decisions were tactical is insufficient, and he cites no supporting authority or evidence. See Ariz. R. Crim. P. 32.9(c)(1) (petition must include "reasons why the petition should be granted" including "specific references to the record"). We will not find ineffective assistance of counsel based on unsupported speculation. See State v. McDaniel, 136 Ariz. 188, 198, 665 P.2d 70, 80 (1983) (claimant bears burden of establishing ineffective assistance of counsel and "[p]roof of ineffectiveness must be a demonstrable reality rather than a matter of speculation"); see also State v. Donald, 198 Ariz. 406, ¶ 21, 10 P.3d 1193, 1201 (App. 2000) (to warrant evidentiary hearing, Rule 32 claim "must consist of more than conclusory assertions").
¶7 Additionally, Solnicka reasserts his claim that his speedy trial rights were violated. However, that claim is precluded because it could have been raised on appeal. See Ariz. R. Crim. P. 32.2(a)(3). And, although Solnicka again asserts a claim of actual innocence pursuant to Rule 32.1(h), Ariz. R. Crim. P., he does not develop this claim in any meaningful way, and we do not address it. Cf. State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (failure to develop legal argument waives argument on review). Solnicka also refers to the claims raised in his appendix below. Nothing in our rules permits a defendant to incorporate arguments by reference. See Ariz. R. Crim. P. 32.5, 32.9(c); State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991). We therefore do not consider those claims.
¶8 For the reasons stated, although we grant review, we deny relief.