State v. Brown ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
ELIZABETH HALEY BROWN, Petitioner.
No. 1 CA-CR 14-0567 PRPC
FILED 10-13-2016
Petition for Review from the Superior Court in Maricopa County
No. CR2011-162716-001
The Honorable Christine E. Mulleneaux, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Respondent
Elizabeth Haley Brown, Goodyear
Petitioner
STATE v. BROWN
Decision of the Court
MEMORANDUM DECISION
Judge John C. Gemmill1 delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.
G E M M I L L, Judge:
¶1 Petitioner Elizabeth Haley Brown petitions this court for
review of the dismissal of her petition for post-conviction relief. We have
considered the petition for review and, for the following reasons, grant
review but deny relief.
¶2 A jury convicted Brown of possession or use of dangerous
drugs and possession of drug paraphernalia. The trial court sentenced
Brown to an aggregate term of ten years’ imprisonment and we affirmed
her convictions and sentences on direct appeal. Brown now seeks review
of the summary dismissal of her first petition for post-conviction relief. We
have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c)
and Arizona Revised Statutes section 13-4239(C) (2010).
¶3 The petition for review properly presents two issues. Brown’s
trial counsel filed a motion to suppress the drugs and drug paraphernalia
seized from Brown during a search incident to her arrest for a traffic
violation. Brown argues counsel was ineffective when he failed to include
an argument that the search was too invasive. Brown further argues her
counsel was ineffective when he failed to inform her of the date and time of
the suppression hearing early enough to allow her to arrange for witnesses
to attend and testify.
¶4 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 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. “A reasonable probability is a
1 The Honorable John C. Gemmill, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.
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STATE v. BROWN
Decision of the Court
probability sufficient to undermine confidence in the outcome.” Id. Finally,
strategic choices of counsel “are virtually unchallengeable.” Strickland, 466
U.S. at 690-691.
¶5 We grant review but deny relief. Regarding the motion to
suppress, Brown’s counsel argued in his motion that the search incident to
the arrest was illegal because there was no probable cause for the arrest.
Decisions regarding which grounds to allege in a motion to suppress are
matters of trial strategy. Unsuccessful yet valid determinations of trial
strategy are not ineffective assistance of counsel. See State v. Valdez, 160
Ariz. 9, 15 (1989). Further, to show prejudice from counsel’s failure to file a
motion to suppress, a defendant must also show there is a reasonable
likelihood the trial court would have granted the motion. State v. Berryman,
178 Ariz. 617, 622 (App. 1994) (citing Kimmelman v. Morrison, 477 U.S. 365,
375 (1986)). Brown has failed to show there is a reasonable likelihood the
trial court would have granted a motion to suppress based on Brown’s
subjective belief that the search was too invasive because a female police
officer asked her to remove her bra from under her shirt as she stood on the
side of a public street while two male officers stood nearby. Brown cites no
authority in her petition for review that provides such circumstances
warrant suppression of the evidence. For these reasons, Brown has failed
to present a colorable claim of ineffective assistance based on the failure to
argue additional grounds in the motion to suppress.
¶6 Regarding the alleged failure to timely inform Brown of the
date and time of the suppression hearing, Brown was present in the
courtroom with her counsel when the trial court set the date and time of the
hearing. Therefore, Brown has failed to present a colorable claim of
ineffective assistance based on the failure to timely inform her of the date
and time of the hearing.
¶7 While the petition for review presents a number of additional
issues, including many new claims of ineffective assistance of counsel,
Brown did not raise those issues in the petition for post-conviction relief she
filed below. A petition for review may not present issues not first presented
to the trial court. State v. Ramirez, 126 Ariz. 464, 467 (App. 1980); State v.
Wagstaff, 161 Ariz. 66, 71 (App. 1988); State v. Bortz, 169 Ariz. 575, 577 (App.
1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).
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STATE v. BROWN
Decision of the Court
¶8 We grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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