Opinion
2 CA-CR 2024-0180-PR
10-15-2024
The State of Arizona, Respondent, v. Joshua D. Valvano, Petitioner.
Rachel M. Mitchell, Maricopa County Attorney By Faith C. Klepper, Deputy County Attorney, Phoenix Counsel for Respondent DeBrigida Law Offices PLLC, Glendale By Ronald M. DeBrigida Jr. 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. CR2018001618001DT The Honorable Michael J. Herrod, Judge
Rachel M. Mitchell, Maricopa County Attorney By Faith C. Klepper, Deputy County Attorney, Phoenix Counsel for Respondent
DeBrigida Law Offices PLLC, Glendale By Ronald M. DeBrigida Jr. Counsel for Petitioner
Chief Judge Staring authored the decision of the Court, in which Presiding Judge Gard and Judge Eckerstrom concurred.
MEMORANDUM DECISION
STARING, CHIEF JUDGE
¶1 Joshua Valvano 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. He also seeks review of the court's order summarily dismissing his successive notice of post-conviction relief filed after the court dismissed his first petition. We will not disturb those rulings unless the court abused its discretion. See State v. Martinez, 226 Ariz. 464, ¶ 6 (App. 2011). Valvano has not met his burden of establishing such abuse.
¶2 After a jury trial, Valvano was convicted of sexual conduct with a minor, attempted sexual conduct with a minor, and continuous sexual abuse of a child. The trial court sentenced him to consecutive twenty-year prison terms for his convictions of sexual conduct and continuous sexual abuse and, for attempted sexual conduct, suspended the imposition of sentence and placed Valvano on lifetime probation. We affirmed his convictions and disposition on appeal. State v. Valvano, No. 1 CA-CR 20-0489 (Ariz. App. Jan. 27, 2022) (mem. decision).
¶3 Valvano sought post-conviction relief, arguing his trial counsel had been ineffective by not seeking to admit into evidence recorded conversations between the victims and police officers before and after their confrontation calls with him during which he made incriminating statements. He also asserted counsel had been ineffective in failing to investigate and interview "potential alibi witnesses" and object to the testimony of the state's expert witness. Last, he argued the prosecutor had engaged in misconduct.
¶4 The trial court summarily dismissed Valvano's petition. As to Valvano's first argument, it noted he had neither provided the full recordings nor transcripts of those recordings and, thus, the court could only "speculate about what prejudice could have resulted." The court further concluded Valvano had not demonstrated deficient performance. It rejected Valvano's second claim of ineffective assistance for much the same reason-that Valvano did not "provide the name, declaration, or affidavit of any person who could provide [alibi] evidence." In rejecting Valvano's final claim of ineffective assistance, the court noted that we had rejected the argument on appeal that the expert's testimony was inadmissible and, thus, Valvano's claim that counsel should have objected was not colorable. It further concluded Valvano's claim of prosecutorial misconduct was precluded because it could have been raised on appeal, and it rejected Valvano's effort to raise in his reply an argument that appellate counsel was ineffective for failing to raise the issue.
¶5 Shortly thereafter, Valvano filed a successive notice of post-conviction relief asserting appellate counsel was ineffective in failing to raise a claim of prosecutorial misconduct. The trial court summarily dismissed the notice, noting the claim was precluded. This petition for review followed.
¶6 On review, Valvano repeats his claims and argues the trial court erred in declining to address the merits of his claim of ineffective assistance of appellate counsel. He contends he presented colorable claims and is entitled to an evidentiary hearing. A defendant is entitled to an evidentiary hearing only if "he presents a colorable claim, that is a claim which, if defendant's allegations are true, might have changed the outcome." State v. Gutierrez, 229 Ariz. 573, ¶ 25 (2012) (quoting State v. Watton, 164 Ariz. 323, 328 (1990)). But a court is not required "to conduct evidentiary hearings based on mere generalizations and unsubstantiated claims that people exist who would give favorable testimony." State v. Borbon, 146 Ariz. 392, 399 (1985); see also State v. Donald, 198 Ariz. 406, ¶ 17 (App. 2000) (defendant must present more than conclusory assertions to be entitled to evidentiary hearing). To state a colorable claim of ineffective assistance, a petitioner must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the petitioner. State v. Bennett, 213 Ariz. 562, ¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." Id.
Valvano asserts it would be "difficult" for him to prove his right to relief without an evidentiary hearing and that his "allegations and offers of proof are sufficient." But the purpose of an evidentiary hearing is to resolve disputed facts, not to develop, in the first instance, evidentiary support for a claim. Moreover, he has not explained why he could not locate evidence supporting his claims before filing his petition. The rules require counsel to investigate the petitioner's claims, allow for the use of court-appointed investigators, and permit evidence to be submitted with a petition. See Ariz. R. Crim. P. 32.5(c), 32.6(a), (b)(1), 32.7(e).
Citing United States v. Cronic, 466 U.S. 648 (1984), Valvano claims "the level of ineffective assistance of [his trial] counsel" is such that he need not show prejudice. The Supreme Court in Cronic noted that prejudice could be presumed "if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing." Id. at 659. Valvano makes no effort to show this standard is met in his case.
¶7 Valvano argues the trial court erred by summarily rejecting his claim that counsel should have presented the recordings between law enforcement officers and the victims to the jury. He asserts, as he did below, that officers told one of the victims that "he needed to get a confession" and that they would "coach him." He contends that had counsel presented this evidence, "the likelihood of a different result would be significant."
¶8 We agree with the trial court that Valvano's claims fail primarily because he did not provide the recording or a transcript of the recording. Indeed, the only record citation Valvano provides is to the transcript of the suppression hearing in which trial counsel told the court that he "seem[ed]" to recollect that an officer told one of the victims that he "needed to get a confession"-a recollection not shared by the court. Furthermore, that transcript does not suggest any officer told either victim they would "coach" them. Without the recording or its transcript, the court could not evaluate whether counsel should have acted differently, much less whether there was any possibility the outcome of his trial would have been different.
¶9 Valvano also reasserts his argument that counsel was ineffective because he did not investigate and interview witnesses in support of an alibi defense, specifically that he was not in Arizona before 2005-after the alleged date of some of his crimes. But Valvano has made no attempt to show what such an investigation would have uncovered beyond stating, without support, that "relatives, friends, and employers could have testified" in support of an alibi defense and "college transcripts, employment records, and bank and credit card statements" would have further supported it. Even assuming trial counsel had reason to conduct further investigation and failed to do so, Valvano's unsupported assertions are not enough to make a colorable claim of prejudice. See Borbon, 146 Ariz. at 399; Donald, 198 Ariz. 406, ¶ 17.
¶10 Valvano again argues that trial counsel was ineffective for failing to object to the state's expert witness. But he all but ignores that we determined on appeal that the expert's testimony was properly admitted. See Valvano, No. 1 CA-CR 20-0489, ¶ 18. Valvano has cited no authority, and we find none, suggesting we should revisit that determination in post-conviction proceedings. The trial court did not err in rejecting this claim on that basis.
¶11 Last, Valvano repeats his claim of prosecutorial misconduct. He asserts, without explanation, that the trial court abused its discretion in finding the claim precluded, which it plainly is because it could have been raised on appeal. See Ariz. R. Crim. P. 32.2(a)(3). He also contends the court's refusal to address his claim of ineffective assistance of appellate counsel, raised for the first time in his reply to the state's response, is not supported "by rule or case law." Valvano is incorrect-it is well-established that a trial court need not address arguments first raised in a reply. See State v. Lopez, 223 Ariz. 238, ¶¶ 5-7 (App. 2009). And, although Valvano briefly asserts the court erred by concluding the claim was precluded when he attempted to raise it in his successive proceeding, he does not develop that argument in any meaningful way. Accordingly, we do not address it further. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (failure to develop argument waives claim on review).
¶12 We grant review but deny relief.