Opinion
No. 1 CA-CR 13-0464 PRPC
02-12-2015
STATE OF ARIZONA, Respondent, v. KEITH WEBER, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Karen Kemper Counsel for Respondent Keith Weber, Florence Petitioner
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Petition for Review from the Superior Court in Maricopa County
No. CR2007-123123-001
The Honorable Joseph C. Welty, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Maricopa County Attorney's Office, Phoenix
By Karen Kemper
Counsel for Respondent
Keith Weber, Florence
Petitioner
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Judge Lawrence F. Winthrop and Chief Judge Diane M. Johnsen joined. SWANN, Judge:
¶1 Keith Weber petitions this court for review from the dismissal of his petition for post-conviction relief. We have considered the petition for review and, for the reasons stated, grant review and deny relief.
¶2 A jury convicted Weber of eleven counts of sexual exploitation of a minor, and the trial court sentenced him to an aggregate term of 110 years of imprisonment. We affirmed his convictions and sentences on direct appeal. State v. Weber, 1 CA-CR 09-0931, 2011 WL 846232 (Ariz. App. Mar. 10, 2011) (mem. decision). Weber then filed a pro se petition for post-conviction relief after his counsel found no colorable claims for relief. The superior court dismissed the petition and Weber now seeks review. We have jurisdiction under Ariz. R. Crim. P. 32.9(c).
¶3 Weber argues that the trial court erred when it amended the indictment before trial; that a probation officer's warrantless search of Weber's residence and personal computer were unconstitutional because Weber was in jail and not "on probation" when the officer conducted the search; and that the search of his residence and computer otherwise violated the Fourth Amendment for reasons Weber does not identify. We deny relief because Weber could have raised these issues on direct appeal. Any claim a defendant raised or could have raised on direct appeal is precluded. Ariz. R. Crim. P. 32.2(a). None of the exceptions under Rule 32.2(b) apply. To the extent Weber suggests that his appellate counsel should have raised these issue on appeal, Weber did not raise this issue below. A petition for review may not present issues not first presented to the trial court. See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980); Bortz, 169 Ariz. at 577, 821 P.2d at 238; see also Ariz. R. Crim. P. 32.9(c)(1)(ii).
If Weber intended to incorporate by reference any Fourth Amendment arguments that he presented below, he may not do so. A petition for review may not incorporate by reference any issue or argument. See State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991). The petition must set forth specific claims, present sufficient argument supported by legal authority and include citation to the record. Ariz. R. Crim. P. 32.5, 32.9(c).
¶4 Weber also argues that his counsel was ineffective when she failed to raise the above issues at trial and when she failed to call a computer forensics expert to testify. To state a colorable claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below objectively reasonable standards and that the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). To show prejudice, "[t]he defendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
¶5 We deny relief because Weber has failed to present any colorable claims of ineffective assistance. Regarding the alleged amendment of the indictment, Weber concedes that the court did nothing more than renumber the counts after the court dismissed some counts prior to trial. The court did not change the substance of any of the counts. The sentencing minute entry also shows the court actually renumbered the counts only for presentation to the jury. Therefore, counsel had no grounds to object. Regarding the failure to call an expert witness, Weber does not provide an affidavit from the expert explaining what testimony the witness could have provided. He has, therefore, failed to present a colorable claim of ineffective assistance based on the failure to call a witness. See State v. Borbon, 146 Ariz. 392, 399, 706 P.2d 718, 725 (1985).
¶6 Finally, in regard to the search of Weber's residence and his personal computer, a probation officer may conduct a warrantless search if the officer has a reasonable suspicion the probationer subject to the search is engaged in criminal activity. State v. Walker, 215 Ariz. 91, 95, ¶ 20, 158 P.3d 220, 224 (App. 2007). Weber does not contest that his probation officer had a reasonable suspicion Weber was engaged in criminal activity. Further, until a court revoked his probation, Weber was still on probation at the time his probation officer conducted the search, despite the fact Weber was already in jail for an unrelated probation violation. Therefore, Weber has failed to present a colorable claim of ineffective assistance based on the failure to claim the search was unconstitutional because Weber was not on probation.
¶7 For the reasons set forth above, we grant review and deny relief.