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State v. Will

ARIZONA COURT OF APPEALS DIVISION TWO
Nov 17, 2014
No. 2 CA-CR 2014-0256-PR (Ariz. Ct. App. Nov. 17, 2014)

Opinion

No. 2 CA-CR 2014-0256-PR

11-17-2014

THE STATE OF ARIZONA, Respondent, v. ROBIN PAT WILL, Petitioner.

COUNSEL Peter A. Kelly, Palominas 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NOT FOR PUBLICATION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 Cochise County
No. CR201000248
The Honorable Charles A. Irwin, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Peter A. Kelly, Palominas
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 Robin Will seeks review of the trial court's order denying in part 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). Will has not met his burden of demonstrating such abuse here.

¶2 After a jury trial, Will was convicted of aggravated assault with a dangerous weapon and misconduct involving weapons as a prohibited possessor and sentenced to concurrent prison terms, the longer of which is ten years. His convictions stemmed from an incident in which he attacked a friend's boyfriend with a knife; his chief defense at trial was that he had done so to defend his friend from the victim. We affirmed Will's convictions and sentences on appeal. State v. Will, No. 2 CA-CR 2011-0097, ¶ 10 (memorandum decision filed May 10, 2012).

¶3 Will filed a petition for post-conviction relief raising numerous claims, including that his trial counsel has been ineffective in failing (1) to seek severance of the prohibited possessor charge from the aggravated assault charge; (2) to investigate the victim's criminal history, to object during the victim's "misleading testimony" about that history, or to timely seek to vacate the judgment based on the state's failure to disclose the victim's out-of-state felony convictions; and (3) to make an effective closing argument that the knife was not designed for lethal use. He additionally argued the state had committed misconduct in failing to disclose some of the victim's previous convictions. The trial court

held an evidentiary hearing on those claims, after which it granted partial relief.

¶4 The trial court rejected the bulk of Will's claims but granted relief on his claim that counsel had been ineffective in failing to timely seek to vacate the judgment based on the state's failure to fully disclose the victim's previous convictions. The court, finding counsel had fallen below prevailing professional norms, determined Will had been prejudiced because the previous convictions would have provided "additional impeachment evidence against [the victim]" and the jury might have "more fully considered [Will's] justification defense" for the aggravated assault charge. The court declined to grant relief from Will's conviction for prohibited possession, however, concluding the evidence supporting that count "stands separate from the evidence submitted on the aggravated assault" and "did not depend on the credibility of [the victim's] testimony."

¶5 On review, Will argues the trial court erred in rejecting his claim counsel was ineffective in failing to move for severance and that the court erred in limiting relief based on "counsel's failure to properly investigate the victim's criminal history" to his conviction for aggravated assault. He further repeats his claim that counsel was ineffective in failing to interview the state's witnesses.

¶6 To prevail on a claim of ineffective assistance, Will "was required to demonstrate that counsel's conduct fell below prevailing professional norms and that he was prejudiced thereby." State v. Denz, 232 Ariz. 441, ¶ 6, 306 P.3d 98, 100-01 (App. 2013), citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To establish prejudice, Will "was required to 'show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. 1 20, quoting Strickland, 466 U.S. at 694. "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Id., quoting Strickland, 466 U.S. at 694.

¶7 Irrespective of whether counsel's conduct fell below prevailing professional norms, Will has failed to show resulting

prejudice, particularly in light of the trial court's grant of partial relief. Will's severance argument is focused entirely on the admission of evidence of his previous conviction in relation to his charge of aggravated assault. He does not argue that severance would have benefitted him at trial on the charge of prohibited possession of a weapon. And he does not address the court's conclusions that his weapons conduct conviction was based on evidence separate from that required to convict him of aggravated assault and that the victim's credibility was not material to that conviction. Nor does he explain how counsel's failure to interview witnesses prejudiced him as to that charge. Instead, he asserts without elaboration that the jury could have reached a different result and that "[i]t is impossible to know to what extent counsel's ineffectiveness impacted the jury's analysis of the case." Unsupported speculation that the jury might have reached a different result is insufficient to show prejudice. See State v. Rosario, 195 Ariz. 264, ¶ 23, 987 P.2d 226, 230 (App. 1999) (to establish claim of ineffective assistance, petitioner must present more than "mere speculation" that prejudice resulted). Will has not demonstrated the court abused its discretion in limiting his relief to his aggravated assault conviction.

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


Summaries of

State v. Will

ARIZONA COURT OF APPEALS DIVISION TWO
Nov 17, 2014
No. 2 CA-CR 2014-0256-PR (Ariz. Ct. App. Nov. 17, 2014)
Case details for

State v. Will

Case Details

Full title:THE STATE OF ARIZONA, Respondent, v. ROBIN PAT WILL, Petitioner.

Court:ARIZONA COURT OF APPEALS DIVISION TWO

Date published: Nov 17, 2014

Citations

No. 2 CA-CR 2014-0256-PR (Ariz. Ct. App. Nov. 17, 2014)