State v. Harmon ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JEFFREY WAYNE HARMON, Petitioner.
No. 1 CA-CR 15-0079 PRPC
FILED 1-5-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2012-009393-001
The Honorable Pamela Hearn Svoboda, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Karen Kemper
Counsel for Respondent
Jeffrey Wayne Harmon, Phoenix
Petitioner Pro Per
STATE v. HARMON
Decision of the Court
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined.
T H O M P S O N, Judge:
¶1 Petitioner Jeffrey Wayne Harmon petitions this court for
review from the summary dismissal of his petition for post-conviction relief
of-right. Harmon pled guilty to two counts of aggravated assault. As was
required by the plea agreement, the superior court sentenced Harmon to
7.5 years’ imprisonment for one count and placed him on four years’
probation for the other count.
¶2 Harmon argues the state’s disclosure of certain evidence was
untimely; the state based the charges in part on perjured testimony, false
evidence and/or misrepresentations by the state during the grand jury
proceedings; and that the state overcharged the case when it overstated the
victims’ injuries during the charging process and, thereby, “induced”
Harmon to plead guilty. We deny relief on these issues because a plea
agreement waives all non-jurisdictional defenses, errors and defects which
occurred prior to the plea. State v. Moreno, 134 Ariz. 199, 201, 655 P.2d 23,
25 (App. 1982). The waiver of non-jurisdictional defects includes
deprivations of constitutional rights. Tollett v. Henderson, 411 U.S. 258, 267
(1973).
¶3 Harmon further argues the evidence was insufficient to
convict and sentence him for count 4 as a class 4 felony because that victim’s
injuries were temporary. We deny relief because Harmon pled guilty to
aggravated assault in count 4 pursuant to Arizona Revised Statute (A.R.S.)
§ 13-1204(A)(3) (2012). This section provides in relevant part that a person
commits aggravated assault if the person commits assault and causes
temporary but substantial disfigurement. Id. The factual basis to support
the plea established that Harmon inflicted temporary but substantial
disfigurement to the victim. Aggravated assault as defined in A.R.S. § 13-
1204(A)(3) is a class 4 felony. A.R.S. § 13-1204(D).
¶4 Harmon also argues the superior court obstructed his right to
appeal when the court refused to order the preparation of transcripts of
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STATE v. HARMON
Decision of the Court
Harmon’s settlement conferences. We deny relief because the decision of
which transcripts to prepare for a post-conviction relief proceeding is
within the superior court’s discretion. Ariz. R. Crim. P. 32.4(d). Further,
Harmon does not explain how those transcripts have any relevance to any
issue he seeks to raise in a post-conviction proceeding or how the failure to
prepare those transcripts prejudiced his ability to present any specific issue.
¶5 Harmon argues his trial counsel was ineffective because she
was “hostile” towards Harmon, refused his requests to file various pretrial
motions and because she failed to have Harmon’s family physician review
the victims’ medical records. The waiver of non-jurisdictional defects
includes all claims of ineffective assistance of counsel not directly related to
the entry of the plea. State v. Quick, 177 Ariz. 314, 316, 868 P.2d 327, 329
(App. 1993). Harmon’s claims are not directly related to the entry of his
pleas. Further, “[d]efense counsel’s determinations of trial strategy, even if
later proven unsuccessful, are not ineffective assistance of counsel.” State
v. Valdez, 160 Ariz. 9, 14-15, 770 P.2d 313, 318-19 (1989) (citations omitted).
Regarding counsel’s alleged hostility, a defendant with appointed counsel
is not entitled to a meaningful relationship with counsel. State v. Henry, 189
Ariz. 542, 546, 944 P.2d 57, 61 (1997).
¶6 Finally, Harmon argues that counsel appointed to represent
him in his post-conviction relief proceedings was ineffective. Counsel
completed a review of the entire record and found no colorable claims for
relief. Harmon argues that counsel was ineffective, however, because
counsel did not respond to Harmon’s correspondence. We deny relief
because Harmon does not explain what, if anything, he asked counsel to do
in that correspondence, what counsel should have done in response to the
correspondence or how counsel’s failure to respond to the correspondence
prejudiced Harmon. Harmon has, therefore, failed to present a colorable
claim for relief.
¶7 We do not address the other issues Harmon presents in his
petition for review or his reply because he did not raise those issues in the
petition for post-conviction relief he filed below. State v. Bortz, 169 Ariz.
575, 577, 821 P.2d 236, 238 (App. 1991); State v. Ramirez, 126 Ariz. 464, 468,
616 P.2d 924, 928 (App. 1980); Ariz. R. Crim. P. 32.9(c)(1)(ii). See also Bortz,
169 Ariz. at 239, 821 P.2d at 578; State v. Smith, 184 Ariz. 456, 459, 910 P.2d
1, 4 (1996) (both holding there is no review for fundamental error in a post-
conviction relief proceeding).
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STATE v. HARMON
Decision of the Court
¶8 We grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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