State v. Chayrez ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DAVID CHAYREZ, III, Petitioner.
No. 1 CA-CR 13-0598 PRPC
FILED 12-8-2015
Appeal from the Superior Court in Maricopa County
No. CR2010-157391-003
The Honorable Randall H. Warner, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Susan L. Luder
Counsel for Respondent
David Chayrez, III, Florence
Petitioner
STATE v. CHAYREZ
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.
W I N T H R O P, Judge:
¶1 Petitioner, David Chayrez, III (“Chayrez”), petitions this
court for review of 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 Chayrez was involved in two cases, the “2010 case” and an
unrelated “2008 case.” Counsel who represented Chayrez at trial in the
2010 case also represented Chayrez in probation revocation proceedings in
the 2008 case. That counsel did not, however, represent Chayrez during
any other portion of the 2008 case.
¶3 A jury convicted Chayrez of conspiracy to commit possession
of marijuana for sale, possession of marijuana for sale, and misconduct
involving weapons in the 2010 case. The trial court sentenced Chayrez to
an aggregate term of 9.25 years’ imprisonment. As a result of those
convictions, the court also revoked Chayrez’s probation in the 2008 case
and sentenced him to an aggregate term of 3.5 years’ imprisonment for
assisting a criminal street gang and aggravated assault. This court affirmed
Chayrez’s convictions, the revocation of probation, and his sentences on
appeal. Chayrez now seeks review of the summary dismissal of his first
petition for post-conviction relief in the 2010 case. We have jurisdiction
pursuant to Arizona Rule of Criminal Procedure 32.9(c) and Arizona
Revised Statutes section 13-4239(C) (2010).
¶4 The petition for review properly presents one issue. Chayrez
argues counsel who represented him at trial in the 2010 case and the
revocation proceedings in the 2008 case had a conflict of interest due to his
previous representation of a defendant named “Montero.” Chayrez’s 2008
case was based on the same incident that resulted in charges against
Montero in 2008; however, Chayrez and Montero were not charged
together, the cases were never consolidated, and both defendants
ultimately pled guilty. Regardless, Chayrez contends his counsel could not
represent him in the revocation proceedings in the 2008 case because he
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STATE v. CHAYREZ
Decision of the Court
previously represented Montero for the same incident. He further argues
counsel could not represent him in the 2010 case because the State used the
convictions from the 2008 case to enhance the sentences in the 2010 case.
¶5 Absent informed, written consent of each affected client, “[a]
concurrent conflict of interest exists if: (1) the representation of one client
will be directly adverse to another client; or (2) there is a significant risk that
the representation of one or more clients will be materially limited by the
lawyer’s responsibilities to another client, a former client or a third person
or by a personal interest of the lawyer.” Ariz. R. Sup. Ct. 42, ER (“Rule”)
1.7. In order to prove ineffective assistance of counsel based on the
existence of a conflict of interest, a defendant must show there was an actual
conflict of interest and that the conflict had an adverse effect on counsel’s
representation. State v. Jenkins, 148 Ariz. 463, 466, 715 P.2d 716, 719 (1986).
To establish an adverse effect, the defendant must show the conflict
reduced his attorney’s effectiveness. Id. at 467, 715 P.2d at 720. The negative
impact must, however, be “substantial.” Id. Finally, a violation of Rule 1.7
does not necessarily result in a finding of ineffective assistance of counsel.
Id. at 465, 715 P.2d at 718.
¶6 We deny relief. Chayrez has failed to present a colorable
claim that there was an actual conflict of interest or that any alleged conflict
had an adverse effect on counsel’s representation. First, as noted by the
trial court, counsel’s representation of Montero ended shortly after
Montero’s sentencing in December 2009. Counsel did not appear in
Chayrez’s cases until November 2010. Second, the probation revocation
proceedings were completely independent of the underlying charges and
evidence in the 2008 case. The trial court revoked probation in the 2008 case
based solely on Chayrez’s convictions in the 2010 case. Any knowledge of
the events in the 2008 case that counsel gained through his representation
of Montero was irrelevant in the context of Chayrez’s revocation
proceedings. Finally, nothing in the record suggests counsel’s prior
representation of Montero was, at any time, directly adverse to Chayrez, or
that counsel’s prior representation limited counsel’s representation of or
responsibilities to Chayrez in any way, let alone “materially.”
¶7 Chayrez offers only speculation to the contrary. Chayrez
directs us to nothing in the record to support his claim that counsel obtained
a better resolution for Montero by brokering a “deal” in which Montero
would assist the State in its 2008 case against Chayrez, or that Montero
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STATE v. CHAYREZ
Decision of the Court
ultimately assisted the State in any case against Chayrez.1 He directs us to
nothing in the record to support his claim that counsel recommended
Chayrez not testify at trial because of information counsel obtained through
his representation of Montero. If this did occur, Chayrez does not explain
how counsel’s recommendation was adverse to Chayrez or how it
adversely affected or limited counsel’s representation of Chayrez. Chayrez
also does not explain how his testimony could have changed the outcome
of the 2010 case. This court previously recognized on direct appeal of the
2010 case that Chayrez’s participation in the “warehouse transaction,” his
handling and possession of marijuana, and his possession of a handgun all
appeared on a surveillance video admitted at trial.
¶8 Although the petition for review presents additional issues,
Chayrez 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. See State v. Bortz, 169 Ariz. 575, 577, 821 P.2d
236, 238 (App. 1991); State v. Wagstaff, 161 Ariz. 66, 71, 775 P.2d 1130, 1135
(App. 1988), approved as modified, 164 Ariz. 485, 493, 794 P.2d 118, 126 (1990);
State v. Ramirez, 126 Ariz. 464, 467, 616 P.2d 924, 927 (App. 1980); Ariz. R.
Crim. P. 32.9(c)(1)(ii).
¶9 For the above reasons, we grant review and deny relief.
:ama
1 Counsel did not begin to represent Montero in the 2008 case until
approximately two months after Montero pled guilty.
4