Opinion
No. 2 CA-CR 2018-0297-PR
03-25-2019
THE STATE OF ARIZONA, Respondent, v. JUAN JOSE VARGAS-CAPITAN, Petitioner.
COUNSEL Law Offices of Thomas Jacobs, Tucson By Thomas Jacobs 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Pima County
No. CR20150500001
The Honorable Renee T. Bennett, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Law Offices of Thomas Jacobs, Tucson
By Thomas Jacobs
Counsel for Petitioner
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Eckerstrom concurred.
ESPINOSA, Judge:
¶1 Juan Vargas-Capitan 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). Vargas-Capitan has not shown such abuse here.
¶2 After a jury trial, Vargas-Capitan was convicted of two counts of kidnapping and one count each of aggravated assault, armed robbery, attempted armed robbery, and first-degree burglary. The trial court sentenced him to concurrent and consecutive prison terms totaling 20.5 years. We affirmed his convictions on appeal and affirmed his sentences after correcting the start date for one sentence. State v. Vargas-Capitan, No. 2 CA-CR 2016-0041 (Ariz. App. Mar. 14, 2017) (mem. decision).
¶3 Vargas-Capitan sought post-conviction relief, arguing his trial counsel had been ineffective by failing to: (1) challenge whether there had been reasonable suspicion for his detention at a border crossing; (2) seek suppression of the victims' pretrial identification of him during that detention; (3) object to hearsay testimony that he lived nearby; (4) "preserve the issue" when the trial court refused to remove a law enforcement agent from the jury; and (5) file a motion for new trial arguing the verdict was against the weight of the evidence. The trial court summarily dismissed the petition, and this petition for review followed.
¶4 On review, Vargas-Capitan repeats his claims of ineffective assistance of trial counsel. In a Rule 32 proceeding, 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).
¶5 We have reviewed the record and Vargas-Capitan's claims and have determined the trial court correctly rejected them in its thorough and well-reasoned minute entry, which we accordingly adopt. See State v. Whipple, 177 Ariz. 272, 274 (App. 1993). We write further, however, to note other deficiencies in Vargas-Capitan's claims and to address specific arguments he has made in response to the trial court's ruling.
¶6 The facts Vargas-Capitan cites in support of his claims that counsel should have challenged his detention and pretrial identification are grounded solely in trial testimony. Trial testimony, however, would not necessarily encompass all the facts known to counsel that could be relevant to the issues that would be addressed by such motions—specifically, whether a border patrol officer had reasonable suspicion to detain Vargas-Capitan, or whether the one-man show-up conducted shortly after his detention was unduly suggestive.
¶7 Instead, the more relevant issue is whether counsel should have filed the motions based on the information available before trial, such as police reports and witness interviews. See generally Ariz. R. Crim. P. 15 (governing disclosure in criminal cases); Ariz. R. Crim. P. 16.1(b) (requiring parties to "make all motions no later than 20 days before trial"). Those materials might well contain information that would have convinced reasonable counsel that pursuing the arguments Vargas-Capitan now identifies would have been fruitless. The burden to show ineffective assistance "is on the petitioner and the showing must be that of a provable reality, not mere speculation." State v. Rosario, 195 Ariz. 264, ¶ 23 (App. 1999). Accordingly, a trial court could reasonably conclude that a defendant's claims are not colorable when the defendant has neglected to specify the information available to trial counsel at the pertinent stage of the litigation when deficient performance is asserted.
¶8 Finally, we address aspects of Vargas-Capitan's claim regarding the trial court's decision not to strike for cause a potential juror who was a law enforcement officer. Vargas-Capitan raised that issue on appeal, but we concluded, even assuming the trial court had erred, Vargas-Capitan had not argued he had been "unable to remove another objectionable empaneled juror." Vargas-Capitan, No. 2 CA-CR 2016-0041, ¶¶ 7-18. In his petition below, Vargas-Capitan argued his trial counsel had been ineffective in failing to "preserve the issue" by arguing there was
another objectionable juror she would have struck. The trial court rejected that argument, concluding Vargas-Capitan had "provide[d] no factual basis to establish an objectionable juror was impaneled."
¶9 On review, Vargas-Capitan argues the trial court placed him in a "catch-22" by requiring him to show there was an objectionable juror, thus requiring him to show trial counsel had fallen below prevailing professional norms by showing what counsel had failed to establish. But, even if we agreed this was an unfair burden on Vargas-Capitan to show prejudice, his claim nonetheless fails. First, he has not identified what counsel failed to do that might have identified an objectionable juror, nor has he identified from the jury voir dire any potentially undesirable juror that had been empaneled. Thus, Vargas-Capitan has not demonstrated prejudice.
¶10 Although we grant review, relief is denied.