State v. Dwyer ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DENNIS EDWARD DWYER, Petitioner.
No. 1 CA-CR 15-0858 PRPC
FILED 9-14-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2007-174789-001
The Honorable Christopher T. Whitten, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Gerald R. Grant
Counsel for Respondent
The Hopkins Law Office PC, Tucson
By Cedric Martin Hopkins
Counsel for Petitioner
STATE v. DWYER
Decision of the Court
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Randall M. Howe and Judge Maria Elena Cruz joined.
S W A N N, Judge:
¶1 In 2009, a jury convicted Dwyer of burglary in the second
degree and aggravated assault, and the court sentenced him as a repetitive
offender to concurrent, aggravated fifteen-year prison terms. We affirmed
the convictions and sentences on appeal. State v. Dwyer, 1 CA-CR 11-0684
(Ariz. App. Feb. 28, 2013) (mem. decision).
¶2 Dwyer timely filed a petition for post-conviction relief, raising
claims of ineffective assistance of trial counsel. Specifically, he alleged that
trial counsel provided ineffective assistance by failing to communicate with
him, failing to properly investigate potential defenses, failing to interview
potential witnesses and cross-examine all witnesses at trial, failing to give
an opening statement, failing to provide meaningful argument to support
his motion for judgment of acquittal, failing to provide meaningful
argument in the aggravation phase, failing to provide meaningful
argument at sentencing, and using illegal substances during trial. The
superior court summarily dismissed the petition, ruling that Dwyer failed
to make a showing of either deficient performance or resulting prejudice.
¶3 Dwyer now seeks review by this court. We grant review and,
for the reasons set forth below, we deny relief.
¶4 We review the superior court’s decision to summarily dismiss
Dwyer’s petition for abuse of discretion. State v. Bennett, 213 Ariz. 562, 566,
¶ 17 (2006). Summary dismissal of a petition for post-conviction relief is
appropriate “[i]f the court . . . determines that no . . . claim presents a
material issue of fact or law which would entitle the defendant to relief
under this rule and that no purpose would be served by any further
proceedings.” Ariz. R. Crim. P. 32.6(c). To be entitled to an evidentiary
hearing, a petitioner must present a colorable claim. State v. Krum, 183 Ariz.
288, 292 (1995). In determining whether a claim is colorable, the allegations
are viewed in view of the entire record. See State v. Lemieux, 137 Ariz. 143,
146 (App. 1983).
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STATE v. DWYER
Decision of the Court
¶5 To state a colorable claim of ineffective assistance of counsel,
a defendant must show both that counsel’s performance fell below
objectively reasonable standards and that counsel’s deficient performance
prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). To
establish prejudice, the 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. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694.
If the defendant fails to make a sufficient showing on either prong of the
Strickland test, the court need not determine whether the other prong was
satisfied. State v. Salazar, 146 Ariz. 540, 541 (1985).
¶6 We conclude that Dwyer has made no specific showing that
would satisfy the prejudice prong of the Strickland test for ineffective
assistance of counsel, and we therefore hold that the superior court acted
within its discretion by summarily dismissing his petition for post-
conviction relief. Though Dwyer alleged various failures on the part of his
trial counsel, he made no showing that those failures had an adverse effect
on the outcome of his trial or sentencing in view of the evidence presented
at trial and sentencing. And though, as the superior court acknowledged,
Dwyer presented evidence “from which it can be fairly inferred that his trial
counsel was using drugs and/or alcohol during the general time of
[Dwyer]’s trial,” drug and alcohol abuse during trial, “standing alone, does
not establish a per se violation of a criminal defendant’s right to receive
effective assistance of counsel.” State v. D’Ambrosio, 156 Ariz. 71, 73 (1988).
Contrary to Dwyer’s contentions, the record does not support a conclusion
that counsel was impaired during trial to the point of causing presumptive
prejudice by being simply a “neutral observer of the trial.” See State v. Nash,
143 Ariz. 392, 399 (1985).
AMY M. WOOD • Clerk of the Court
FILED: AA
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