Opinion
No. 1 CA-CR 13-0414 PRPC
11-25-2014
STATE OF ARIZONA, Respondent, v. JEREMY LAMON WILLIAMS, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Diane Meloche Counsel for Respondent Jeremy Lamon Williams, Florence Petitioner
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Petition for Review from the Superior Court in Maricopa County
No. CR2011-152434-001
The Honorable Pamela D. Svoboda, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent
Jeremy Lamon Williams, Florence
Petitioner
MEMORANDUM DECISION
Presiding Judge Patricia A. Orozco, Judge Randall M. Howe and Judge Maurice Portley delivered the decision of the Court.
PER CURIAM:
¶1 Jeremy Lamon Williams 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 Williams pled guilty to aggravated driving under the influence and the trial court sentenced him to 3.5 years' imprisonment as stipulated in the plea agreement. Williams filed a pro se petition for post-conviction relief of right after his counsel found no colorable claims for relief. The trial court summarily dismissed the petition, and Williams now seeks review. We have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).
¶3 Williams presents a laundry list of claims, most of which allege ineffective assistance of trial counsel. 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, a defendant must prove that a reasonable probability exists that the result of the proceeding would have been different but for counsel's unprofessional errors. Id. at 694.
¶4 Williams argues his counsel was ineffective when she failed to investigate and submit mitigating factors for the trial court's consideration at sentencing. He has failed to present a colorable claim for relief because he does not identify any mitigating factors counsel failed to present to the court. Further, Williams stipulated to a sentence of 3.5 years' imprisonment as part of the plea agreement. The trial court had no discretion to impose a different sentence regardless of the existence or absence of mitigating factors. Finally, the court found several mitigating factors at sentencing.
¶5 Williams contends his counsel was also ineffective because she failed to request a mental health evaluation for him. But he has failed to present a colorable claim for relief because he does not identify any mental health condition or symptoms from which he suffered at any relevant time. Further, Williams does not allege how any unidentified condition played a role in his commission of the offense or affected his competency to defend against the charge, assist his counsel or plead guilty, nor does he allege the role any unidentified mental health condition should have played in the determination of the appropriate punishment. While Williams provides records he claims demonstrate he suffers from a mental health condition, he did not provide those records to the trial court as part of his petition for post-conviction relief. We will not consider matters not first presented to the trial court. State v. Wagstaff, 161 Ariz. 66, 71, 775 P.2d 1130, 1135 (App. 1988).
¶6 Williams also argues his counsel was ineffective when she failed to provide him a meaningful defense. He argues counsel should have compelled witnesses to come forward to aid in his defense. Because Williams failed to identify any witnesses, provide affidavits from those witnesses, or otherwise explain what information those witnesses could have provided, he has failed to present a colorable claim for relief. See State v. Borbon, 146 Ariz. 392, 399, 706 P.2d 718, 725 (1985). Williams also argues his counsel should have investigated and/or verified where he was sitting in the vehicle at the time law enforcement officers stopped him. He has failed to present a colorable claim for relief because he does not identify what information further investigation would have revealed. Moreover, Williams admitted below that he had "actual physical control" of the vehicle at the time of the stop and concedes in his petition for review that he had "actual physical control" of the vehicle. See A.R.S. §§ 28-1381(A) (DUI conviction requires "actual physical control" of the vehicle); 28-1383(A) (aggravated DUI).
¶7 Williams contends next that his counsel should have challenged the constitutionality of the traffic stop that led to his arrest. Williams has failed to present a colorable claim for relief because he identifies no grounds upon which to challenge the stop and offers nothing to suggest any challenge would have been successful. Williams also argues his counsel should have raised an issue regarding the discrepancy between the results of tests that measured the concentration of alcohol in his blood. He has again failed to present a colorable claim for relief because he offers no evidence of any discrepancy or inaccuracy and does not argue the test result the State ultimately relied upon was not accurate.
¶8 Williams argues his counsel was ineffective in other ways as well. He claims his counsel was ineffective when she told the court an unidentified witness did not want to testify on his behalf. Williams claims counsel should not have provided this information to the court without his permission. He has failed to present a colorable claim because he does not identify the witness, does not explain how the witness's testimony or lack thereof could have benefitted him, and he does not explain how providing this information to the court prejudiced him. Williams also claims his counsel had a conflict of interest because she purportedly made a comment that referenced Williams's sexual orientation. While he argued below that counsel had a conflict of interest, Williams did not present the issue in this context. Again, we will not consider issues not first presented to the trial court. Additionally, nothing in the record suggests that Williams's counsel or anyone else was biased against him because of his sexual orientation.
¶9 Williams also contends the trial court and his counsel coerced him into accepting the plea offer when they explained at a settlement conference that based on the evidence and their experience with aggravated DUI cases, the outcome of a trial would probably be unfavorable. The court also explained the full range of the sentences he faced if convicted of all charged counts. Williams has failed to present a colorable claim for relief because, (1) a frank discussion of the evidence, range of sentences, and probable outcome of a trial is not coercion and, (2) Williams told the trial court at the change of plea hearing that nobody coerced him into accepting the plea offer.
¶10 Williams additionally argues the trial court and his counsel breached a "contract" with him when the court ordered the preparation of a presentence/probation violation report. Williams contends that he waived the preparation of the report so he could get out of the Maricopa County jail and into a Department of Corrections facility more quickly and that the preparation of the report delayed sentencing. This is not a cognizable claim under Rule 32.1. Further, Williams does not explain how he suffered any legally recognized prejudice from the failure to sentence him more quickly than the twenty-seven days that passed between the day he pled guilty and the day the court imposed sentence. He does not contend he did not receive full credit for all of his presentence incarceration.
¶11 In claims unrelated to the performance of his counsel, Williams argues his sentence is grossly disproportionate to the offense. He has failed to present a colorable claim because he does not explain why the sentence is legally disproportionate. He simply argues he deserved less time. Moreover, nothing grossly disproportionate about a 3.5 year sentence
for aggravated driving under the influence exists. Williams also claims he did not have the opportunity to review the presentence/probation violation report. He has failed to present a colorable claim because he does not argue how he was prejudiced and does not identify any errors within the report. Finally, Williams complains that he was entitled to treatment for alcoholism rather than a prison sentence and makes various complaints about conditions in the Maricopa County jail. These are not cognizable claims for relief under Rule 32.1.
¶12 While the petition for review presents additional issues, Williams did not raise those issues in the petition for post-conviction relief he filed below. A petition for review may not present issues not first presented to the trial court. State v. Ramirez, 126 Ariz. 464, 467, 616 P.2d 924, 927 (App. 1980); Wagstaff, 161 Ariz. at 71, 775 P.2d at 1135; State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).
¶13 We grant review and deny relief.