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State v. Walford

ARIZONA COURT OF APPEALS DIVISION TWO
Nov 14, 2014
No. 2 CA-CR 2014-0354-PR (Ariz. Ct. App. Nov. 14, 2014)

Opinion

No. 2 CA-CR 2014-0354-PR

11-14-2014

THE STATE OF ARIZONA, Respondent, v. GARY BERNARD WALFORD, Petitioner.

COUNSEL William G. Montgomery, Maricopa County Attorney By E. Catherine Leisch, Deputy County Attorney, Phoenix Counsel for Respondent Gary Walford, Phoenix 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.

Petition for Review from the superior Court in Maricopa County
No. CR2008109168001SE
The Honorable Connie Contes, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

William G. Montgomery, Maricopa County Attorney
By E. Catherine Leisch, Deputy County Attorney, Phoenix
Counsel for Respondent

Gary Walford, Phoenix
In Propria Persona

MEMORANDUM DECISION

Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred.

VÁSQUEZ, Judge:

¶1 Gary Walford seeks review of the trial court's order summarily denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., in which he claimed counsel had been ineffective in his first post-conviction proceeding following his guilty plea. We grant review but deny relief.

¶2 In 2008, Walford pled guilty to possession of marijuana for sale. The trial court suspended the imposition of sentence and placed Walford on a four-year term of probation. He sought post-conviction relief and, after appointed counsel filed a notice of completion stating she had found no claims to raise in post-conviction proceedings, Walford filed a pro se petition for post-conviction relief, which the trial court summarily denied.

¶3 In October 2010, Walford filed a notice of post-conviction relief stating he wished to assert a claim of ineffective assistance of counsel. The court appointed counsel, who filed a notice of completion. Walford then filed a pro se petition arguing his Rule 32 counsel had been ineffective in failing to raise an argument based on documents that Walford claimed would demonstrate he had not possessed the marijuana for sale but instead was guilty only of "simple possession." The trial court summarily denied relief, stating that "a claim of ineffective assistance of post-conviction relief counsel cannot be asserted" in a Rule 32 proceeding.

¶4 On review, Walford first asserts the trial court erred in concluding that a claim of ineffective assistance of Rule 32 counsel was not cognizable. We agree. As a pleading defendant, Walford is

entitled to claim in a successive post-conviction proceeding that his first post-conviction counsel was ineffective. Osterkamp v. Browning, 226 Ariz. 485, ¶¶ 7-10, 250 P.3d 551, 553-54 (App. 2011). Thus, the court was incorrect to reject Walford's claim on that basis.

¶5 However, we will affirm a trial court's ruling when it reaches the correct result even when it does so for the wrong reason. State v. Oakley, 180 Ariz. 34, 36, 881 P.2d 366, 368 (App. 1994). Walford has not stated a colorable claim of ineffective Rule 32 counsel. That is, he has not "show[n] both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced [him]." State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006), citing Strickland v. Washington, 466 U.S. 668, 687 (1984).

¶6 Walford claims his Rule 32 counsel did not investigate information he had provided her and that he had relied on in defending the state's civil forfeiture claim against him. But, by pleading guilty, Walford has waived all non-jurisdictional defects and defenses except those that relate to the validity of his plea. See State v. Quick, 177 Ariz. 314, 316, 868 P.2d 327, 329 (App. 1993). Walford claimed in his affidavit below that the state had based the "for sale" aspect of his charge "on the amount of currency" found in his possession, and that he could demonstrate "that he was a business owner and that the currency came from his business account." Although that evidence might have been useful had Walford gone to trial, he admitted he had possessed the marijuana for sale. Walford has not explained how the source of the currency affects the validity of that admission and, thus, has not explained how this information would have supported a claim under Rule 32 that would have entitled him to relief. His claim of ineffective assistance of Rule 32 counsel therefore fails.

¶7 For the reasons stated, although we grant review, we deny relief.


Summaries of

State v. Walford

ARIZONA COURT OF APPEALS DIVISION TWO
Nov 14, 2014
No. 2 CA-CR 2014-0354-PR (Ariz. Ct. App. Nov. 14, 2014)
Case details for

State v. Walford

Case Details

Full title:THE STATE OF ARIZONA, Respondent, v. GARY BERNARD WALFORD, Petitioner.

Court:ARIZONA COURT OF APPEALS DIVISION TWO

Date published: Nov 14, 2014

Citations

No. 2 CA-CR 2014-0354-PR (Ariz. Ct. App. Nov. 14, 2014)