State v. Larsgard ( 2019 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    JOHN KRISTOFFER LARSGARD, Petitioner.
    No. 1 CA-CR 18-0598 PRPC
    FILED 4-25-2019
    Petition for Review from the Superior Court in Navajo County
    No. S0900CR201100767
    S0900CR201100780
    The Honorable Dale P. Nielson, Judge
    REVIEW GRANTED AND RELIEF DENIED
    COUNSEL
    Navajo County Attorney’s Office, Holbrook
    By Michael R. Shumway
    Counsel for Respondent
    Law Office of Elizabeth M. Hale, Lakeside
    By Elizabeth M. Hale
    Counsel for Petitioner
    STATE v. LARSGARD
    Decision of the Court
    MEMORANDUM DECISION
    Judge Randall M. Howe delivered the decision of the Court, in which
    Presiding Judge Paul J. McMurdie and Judge Jennifer B. Campbell joined.
    H O W E, Judge:
    ¶1            John Kristoffer Larsgard 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 but deny
    relief.
    ¶2           After a jury trial, Larsgard was convicted of six counts of
    aggravated assault and one count of felony endangerment for driving into
    a crowd of people celebrating at a festival in Winslow.1 The trial court
    sentenced him to a presumptive aggregate term of 7.5 years’ imprisonment.
    ¶3             On direct appeal, Larsgard argued that (1) the medications
    administered by jail medical staff significantly affected his access to counsel
    and ability to participate in his own defense, (2) the State committed various
    disclosure violations, and (3) the jury’s verdicts were contrary to the weight
    of the evidence. See State v. Larsgard, 1 CA-CR 12-0283, 
    2013 WL 1908037
    , at
    *1–4 ¶¶ 2–18 (Ariz. App. May 7, 2013) (mem. decision). We disagreed,
    affirming his convictions and sentences. 
    Id. at *4
    ¶ 19.
    ¶4            Larsgard timely petitioned for post-conviction relief, raising
    a litany of constitutional and procedural issues. The trial court summarily
    dismissed the petition, in part, but set an evidentiary hearing as to
    Larsgard’s claims that the jury should have been instructed about the
    lesser-included offenses of aggravated assault and that the Arizona
    Department of Corrections (“DOC”) denied his access and right to counsel.
    After hearing testimony from Larsgard and his former counsel, the court
    dismissed the remaining claims. This petition for review followed.
    1      The State originally charged Larsgard with a total of 36 counts in two
    separate cases, consolidated for trial. The trial court subsequently granted
    the State’s motion to dismiss all counts, except the nine counts presented to
    the jury. The jury acquitted Larsgard of two counts of aggravated assault.
    2
    STATE v. LARSGARD
    Decision of the Court
    ¶5            We will not reverse a trial court’s ruling on a petition for
    post-conviction relief absent an abuse of discretion. State v. Schrock, 
    149 Ariz. 433
    , 441 (1986). If a petitioner seeks review after an evidentiary
    hearing, we review the court’s findings of fact to determine if they are
    clearly erroneous. State v. Herrera, 
    183 Ariz. 642
    , 648 (App. 1995).
    1. Newly Discovered Evidence
    ¶6            Larsgard argues that the trial court abused its discretion in
    dismissing his claim that the DOC’s inability to provide proper medical
    treatment for his pre-existing medical condition violates his constitutional
    rights and constitutes newly discovered evidence under Arizona Rule of
    Criminal Procedure (“Rule”) 32.1(e). Larsgard contends further that he is
    entitled to an evidentiary hearing to determine whether the court knew of
    the “deplorable health care conditions” at the DOC when imposing his
    imprisonment term.
    ¶7            To prevail on a claim of newly discovered evidence under
    Rule 32.1(e), and thereby exempted from preclusion, a defendant must
    show that the proffered evidence (1) existed at the time of trial but was
    discovered only after trial; (2) could not have been discovered through the
    exercise of due diligence; (3) would not be simply cumulative or
    impeaching; (4) would be relevant to the case; and (5) would probably have
    altered the verdict, finding, or sentence if known at the time of trial. See
    Ariz. R. Crim. P. 32.1(e), 32.2(a)–(b); State v. Bilke, 
    162 Ariz. 51
    , 52–53 (1989);
    State v. Saenz, 
    197 Ariz. 487
    , 490 ¶ 13 (App. 2000). A newly diagnosed
    medical condition that existed at the time of trial can constitute newly
    discovered evidence relevant to sentencing. 
    Bilke, 162 Ariz. at 53
    (diagnosis
    of post-traumatic stress disorder); State v. Cooper, 
    166 Ariz. 126
    , 128–30
    (App. 1990) (diagnosis of human immunodeficiency virus).
    ¶8             Here, Larsgard fails to show that he is entitled to relief under
    Rule 32.1(e). The issue of Larsgard’s medical condition, namely symptoms
    2
    associated with a neck injury, arose throughout the trial and sentencing. At
    2      Larsgard relies heavily on the factual similarities between the
    current case and State v. Rininger, Superior Court of Cochise County, Cause
    No. CR20093923-001. The defendant in Rininger sought review of the
    summary dismissal of his Rule 32 petition, and this Court denied relief in
    State v. Rininger, 2 CA-CR 2012-0512-PR, 
    2013 WL 1460559
    , *2 ¶ 5 (Ariz.
    App. Apr. 10, 2013) (mem. decision). Although Rininger is not controlling,
    we note that our findings in that decision are consistent with those in the
    current case. See 
    Id. at *1–2
    ¶¶ 1–5.
    3
    STATE v. LARSGARD
    Decision of the Court
    the very least, the record shows that the trial court knew of the medical
    condition when imposing his imprisonment terms.
    ¶9             Regarding his pre-existing medical condition, Larsgard has
    not shown why he did not raise the constitutionality of his sentences on
    direct appeal; accordingly, he is precluded from raising the issue here, and
    no exceptions to preclusion apply. See Ariz. R. Crim. P. 32.1(e), 32.2(a)–(b).
    Moreover, to the extent Larsgard argues his medical condition has
    worsened while in the DOC’s custody, this claim cannot be considered a
    newly discovered fact under Rule 32.1(e) because it did not exist at the time
    of trial or sentencing. See 
    Bilke, 162 Ariz. at 53
    . Thus, the trial court did not
    abuse its discretion in summarily dismissing this claim.
    2. Jury Instruction on Lesser-Included Offenses
    ¶10              Larsgard also argues that he was entitled to have the jury
    instructed on the lesser-included offenses of aggravated assault and that the
    court’s failure to provide such instruction was fundamental error. Any
    issue a defendant could have raised on direct appeal is precluded unless an
    exception under Rule 32.2(b) applies. Ariz. R. Crim. P. 32.2(a)–(b). Claims
    of fundamental error are not exempt from preclusion. If the supreme court
    “had intended that fundamental error be an exception to preclusion under
    Rule 32.2, the court presumably would have expressly said so in the rule
    itself[.]” State v. Swoopes, 
    216 Ariz. 390
    , 403 ¶ 42 (App. 2007).
    ¶11            Larsgard did not raise this claim on direct appeal and nothing
    shows that any exception under Rule 32.2(b) applies. See Larsgard, 1 CA-CR
    12-0283, at *1–4 ¶¶ 2–18. His claim is therefore precluded under Rule 32.2(a)
    and (b).
    3. Access to Appellate Counsel
    ¶12            Larsgard also contends that the trial court abused its
    discretion in dismissing his claim that the DOC violated his right to counsel.
    A defendant’s constitutional right to effective assistance of counsel on
    appeal and ineffective assistance of appellate counsel is a cognizable Rule
    32 claim. See Ariz. R. Crim. P. 6.1(a), 31.5(a), (e); 
    Herrera, 183 Ariz. at 645
    . To
    obtain relief on any Rule 32 claim, however, the petition for review must
    contain a statement of the issue presented with supporting material facts
    and such facts must have the appearance of validity. See Ariz. R. Crim. P.
    32.9(c)(4)(B); State v. Suarez, 
    23 Ariz. App. 45
    , 46 (1975). Moreover, a
    defendant’s own self-serving assertions are generally insufficient to raise a
    colorable Rule 32 claim. State v. Wilson, 
    179 Ariz. 17
    , 20 (App. 1993).
    4
    STATE v. LARSGARD
    Decision of the Court
    ¶13          Larsgard contends that the DOC hindered his ability to
    communicate with appellate counsel during vital stages of the appeal.
    Aside from Larsgard’s self-serving statements, the record from the
    evidentiary hearing shows that Larsgard corresponded with appellate
    counsel during the time in question. Although appellate counsel testified
    he had some difficulty speaking with him telephonically, counsel knew of
    Larsgard’s position regarding the appeal and they communicated regularly
    through legal mail. The trial court’s finding that the DOC did not restrict
    Larsgard’s access to counsel is supported by the record.
    4. Ineffective Assistance of Counsel
    ¶14           Larsgard further argues that the trial court abused its
    discretion in dismissing his claim of ineffective assistance of trial and
    appellate 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
    , 688 (1984);
    State v. Bennett, 
    213 Ariz. 562
    , 567 ¶ 21 (2006). “Defense counsel’s
    determinations of trial strategy, even if later proven unsuccessful, are not
    ineffective assistance of counsel.” State v. Valdez, 
    160 Ariz. 9
    , 15 (1989).
    Similarly, appellate counsel’s “strategic decision to ‘winnow out weaker
    arguments on appeal and focus on’ those more likely to prevail is an
    acceptable exercise of professional judgment.” State v. Febles, 
    210 Ariz. 589
    ,
    596 ¶ 20 (App. 2005) (quoting Jones v. Barnes, 
    463 U.S. 745
    , 746 (1983)).
    ¶15           Larsgard’s claim fails to meet the Strickland standard. While
    representing Larsgard, counsel conducted pretrial litigation, used an
    independent investigator, formulated a targeted defense strategy, sought
    leniency at sentencing, and raised multiple issues in a timely appeal. See
    Larsgard, 1 CA-CR 12-0283, at *1–4 ¶¶ 2–18. Although later proven to be
    unsuccessful, Larsgard has not shown that counsel’s strategic decisions in
    trial and the direct appeal constituted ineffective assistance of counsel.
    Thus, the trial court did not abuse its discretion in dismissing this claim.
    ¶16           Accordingly, we grant review but deny relief.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    5
    

Document Info

Docket Number: 1 CA-CR 18-0598-PRPC

Filed Date: 4/25/2019

Precedential Status: Non-Precedential

Modified Date: 4/25/2019