State v. Wade ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JEROD LANCE WADE, Petitioner.
No. 1 CA-CR 16-0640 PRPC
FILED 7-13-2017
Petition for Review from the Superior Court in Mohave County
No. S8015CR201201226
The Honorable Steven F. Conn, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Mohave County Attorney’s Office, Kingman
By Matthew J. Smith
Counsel for Respondent
Jerod Lance Wade, Buckeye
Petitioner
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Paul J. McMurdie joined.
STATE v. WADE
Decision of the Court
T H O M P S O N , Judge:
¶1 Jerod Lance Wade 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 Wade of taking the identity of another,
unlawful flight from law enforcement, and possession of drug
paraphernalia. Wade admitted one prior historical felony. The superior
court sentenced Wade to mitigated, but consecutive, prison terms. Wade
appealed and this court affirmed the judgments and sentences. State v.
Wade, 1 CA-CR 13-0222, 2014 WL 1921186 (May 13, 2014) (mem. decision).
¶3 Wade timely filed a notice of post-conviction relief (PCR).
After reviewing the transcripts and record, including trial counsel’s file,
appointed counsel advised the court that counsel could find no colorable
claims. Wade then filed a pro se petition. He raised claims ineffective
assistance of counsel (IAC). He also claimed that he was deprived of his
right to counsel because of a complete breakdown of communication, his
admission to the prior felony was invalid, and his sentences were illegally
ordered to run consecutively. The superior court properly found that the
claims were not colorable or were precluded.1
¶4 Wade moved for rehearing and for the first time alleged IAC
of his appellate counsel. The motion was denied. This petition for review
followed.
¶5 Initially, Wade complains that his trial counsel violated the
attorney-client privilege in this proceeding. However, Wade waived the
privilege when he alleged his trial counsel was ineffective. State v. Cuffle,
1 Rather than attach defense counsel’s affidavit as required by Ariz. R.
Crim. P. 32.6(a), the state responded by improperly incorporating counsel’s
statements in the body of its response. The superior court noted its
“absolute disapproval” and refused to consider the response, noting:
The Court takes this opportunity to express in no uncertain
terms its absolute disapproval of a prosecutor in a Rule 32
proceeding where ineffective assistance of trial counsel is
being claimed to submit a substantive pleading addressing
such claims which is nothing more than a responsive pleading
prepared by the very attorney whose performance at trial is
being questioned.
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STATE v. WADE
Decision of the Court
171 Ariz. 49, 51-52, 828 P.2d 773, 775-776 (1992). Wade also complains that
the prosecutor and trial counsel were “buddy-buddy, co-associate[s]” who
“teamed up” to respond to his PCR, and that the response was untimely
filed. We do not decide this issue. We note first that the superior court did
not consider the response when it ruled on Wade’s PCR. Secondly, Wade’s
complaint is not properly presented in this petition for review. See Ariz. R.
Crim. P. 32.9(c)(1) (stating in part a petition for review shall contain the
issues decided by the trial court which the defendant wishes to present to
the appellate court). Finally, generally the responsibility for determining
ethical conduct of lawyers rests exclusively with the Arizona Supreme
Court. Lang v. Superior Court, In and For County of Maricopa, 170 Ariz. 602,
603, n. 1, 826 P.2d 1228, 1229 (App. 1992).
¶6 Wade next complains that the superior court did not explain
its reasons for denying his motion for rehearing, and that state failed to
respond to his motion for rehearing. There is no requirement that the court
explain its reasons for denying a motion for rehearing, and unless requested
by the court, the state is not permitted to file a response to a motion for
rehearing. Ariz. R. Crim. P. 32.9(a).
¶7 Finally, Wade argues that the failure to present his issues on
direct appeal is his counsel’s fault, not his fault and thus, the issues are not
precluded. Wade did not properly present this issue to the superior court.
He improperly raised it for the first time in his motion for rehearing. Ariz.
R. Crim. P. 32.9(a) (motion for rehearing shall set forth in detail grounds
wherein trial court erred) and 32.6(d) (after petition filed, no amendments
absent leave of court). Issues not first presented to the trial court may not
be presented in the petition for review. State v. Wagstaff, 161 Ariz. 66, 71,
775 P.2d 1130, 1135 (App. 1988); State v. Bortz, 169 Ariz. 575, 821 P.2d 236
(App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii). A petitioner must strictly comply
with Rule 32 or be denied relief. Bortz, 169 Ariz. at 578, 821 P.2d at 239.
Therefore, we do not consider this claim.
¶8 As to the remaining claims of IAC, the superior court
analyzed each IAC claim and found that either the record failed to support
the claim, or that Wade could not show prejudice. On review, Wade has not
shown any abuse of discretion by the superior court. Absent an abuse of
discretion or error of law, this court will not disturb the trial court’s ruling
on a petition for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577,
¶ 19, 278 P.3d 1276, 1280 (2012).
3
STATE v. WADE
Decision of the Court
¶9 We grant review and deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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