State v. Brown ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
STEVEN RAY BROWN, Petitioner.
No. 1 CA-CR 13-0763 PRPC
FILED 5-21-2015
Petition for Review from the Superior Court in Maricopa County
No. CR 2011-139687-001
The Honorable Susanna C. Pineda, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By E. Catherine Leisch
Counsel for Respondent
Steven Ray Brown, Florence
Pro Se Petitioner
MEMORANDUM DECISION
Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.
STATE v. BROWN
Decision of the Court
G O U L D, Judge:
¶1 Steven Ray Brown petitions for review of the summary
dismissal of his petition for post-conviction relief filed pursuant to Rule 32,
Ariz. R. Crim. P. We have considered his petition for review and, for the
reasons stated, grant review but deny relief.
¶2 Brown pled guilty to kidnapping, a class two felony with one
historical felony conviction, and attempted sexual assault, a class three
felony and non-repetitive offense. The trial court sentenced Brown in
accordance with the terms of the plea agreement to an aggravated 11.75-
year prison term for the kidnapping followed by lifetime probation for the
attempted sexual assault.
¶3 Brown filed a timely notice of post-conviction relief, and
appointed counsel thereafter informed the trial court that he could find no
claims to be raised in a Rule 32 proceeding. Brown then filed a pro se
petition for post-conviction relief alleging claims of ineffective assistance of
counsel and illegal sentence. The trial court summarily dismissed the
petition, ruling that Brown failed to state a colorable claim of relief. This
petition for review followed.
¶4 On review, Brown argues that the trial court erred in ruling
that he failed to state a colorable claim for relief. We review the summary
dismissal of a petition for post-conviction relief for abuse of discretion.
State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006).
¶5 In his petition for review, Brown states that the facts material
to the issues he is presenting for review are set forth in his petition for post-
conviction relief and his reply to the State’s response filed in the superior
court and asks this court “to obtain the entire record from the superior court
and refer to the appropriate sections thereof to make its determinations.”
A petition for review may not simply incorporate by reference any issue or
argument; instead, the petition must set forth specific claims, present
sufficient argument supported by legal authority, and include citation to
the record. Ariz. R. Crim. P. 32.9(c)(1); State v. Moore, 125 Ariz. 528, 529
(App. 1980); see also State v. Smith, 184 Ariz. 456, 460 (1996) (holding there is
no fundamental error review in a post-conviction relief proceeding).
“[C]ompliance with Rule 32 is not a mere formality.” Canion v. Cole, 210
Ariz. 598, 600, ¶ 11 (2005). A petitioner must “strictly comply” with Rule
32 in order to be entitled to relief. Id.
2
STATE v. BROWN
Decision of the Court
¶6 In any event, we have reviewed Brown’s claims and the trial
court’s ruling and conclude the court thoroughly addressed and correctly
rejected the claims in a manner “that will allow any court in the future to
understand the resolution.” State v. Whipple, 177 Ariz. 272, 274 (App. 1993).
No purpose would be served by repeating the trial court’s ruling in its
entirety, and we therefore adopt it. See Id.
¶7 Brown’s complaint that the trial court addressed his claim of
ineffective assistance of counsel by each of its three component parts rather
than as a single claim is without merit. Where the underlying issues on
which a claim of ineffective assistance of counsel is based lacks substance,
there can be no ineffective assistance by counsel in failing to raise the issues
or challenge the trial court’s rulings. See State v. Borbon, 146 Ariz. 392, 399
(1985) (holding counsel not ineffective “for failing to make an essentially
futile request”); State v. Noleen, 142 Ariz. 101, 106 (1984) (holding failure to
engage in futile act not ineffective assistance of counsel). Because the three
issues on which Brown bases his claim of ineffective assistance of counsel
are all without merit, the trial court did not abuse its discretion in finding
that Brown failed to state a colorable claim for relief.
¶8 For the above reasons, although we grant review, we deny
relief.
:ama
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