State v. Follansbee ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent
v.
CLIFFORD ALLEN FOLLANSBEE, Petitioner.
No. 1 CA-CR 13-0121 PRPC
FILED 06-03-2014
Petition for Review from the Superior Court in Coconino County
No. CR2006-1045
The Honorable Dan R. Slayton, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Coconino County Attorney’s Office, Flagstaff
By David W. Rozema
Counsel for Respondent
Clifford Allen Follansbee, Florence
Petitioner Pro Se
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones, Judge Margaret H. Downie, and Judge
Donn Kessler delivered the following decision of the Court.
STATE v. FOLLANSBEE
Decision of the Court
PER CURIAM:
¶1 Clifford Allen Follansbee petitions this Court for review of
the dismissal of his petition for post-conviction relief. For the following
reasons, we grant review and deny relief.
¶2 A jury convicted Follansbee of seven counts of sexual
assault, seven counts of sexual conduct with a minor, seventeen counts of
sexual exploitation of a minor and one count each of kidnapping and
obstructing criminal investigations or prosecutions. The trial court
sentenced him to an aggregate term of 256 years’ imprisonment and this
Court affirmed his convictions and sentences on direct appeal. State v.
Follansbee, 1 CA-CR 08-0146, 2009 WL 2263304 (Ariz. App. Jul. 28, 2009).
Follansbee now seeks review of the summary dismissal of his second
petition for post-conviction relief. We have jurisdiction pursuant to
Arizona Rule of Criminal Procedure 32.9(c).
¶3 Follansbee argues appellate counsel was ineffective in failing
to argue on appeal that the trial court was biased against Follansbee.
Follansbee argues bias was evident from the court’s statement at
sentencing regarding a photograph admitted into evidence. The court
stated that the photograph, which depicted the victim naked and crying,
reminded the court of a famous photograph of a child who was the victim
of a napalm attack during the Vietnam War. Follansbee further argues the
court’s alleged bias affected various rulings during trial.
¶4 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, 687 (1984), superseded by
statute on other grounds, Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104–132, 110 Stat. 1214. To establish prejudice, a
defendant must show there is a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.
¶5 We deny relief. “Appellate counsel is not ineffective for
selecting some issues and rejecting others.” State v. Febles, 210 Ariz. 589,
596, ¶ 19, 115 P.3d 629, 636 (App. 2005). Appellate counsel is not required
to raise every meritorious issue. State v. Herrera, 183 Ariz. 642, 647, 905
P.2d 1377, 1382 (App. 1995). The “strategic decision to winnow out
weaker arguments on appeal and focus on those more likely to prevail is
an acceptable exercise of professional judgment.” Febles, 210 Ariz. at 596,
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STATE v. FOLLANSBEE
Decision of the Court
¶ 20, 115 P.3d at 636 (internal citation and quotation marks omitted).
“Once the issues have been narrowed and presented, appellate counsel’s
waiver of other possible issues binds the defendant. Absent any evidence
that the failure to raise an issue fell below prevailing professional norms
and would have changed the outcome of the appeal, the claim is not
colorable.” Id. at ¶ 19 (internal citation and quotation marks omitted).
Follansbee offers no evidence appellate counsel’s conduct fell below
professional norms in failing to argue on appeal that the trial court
became biased upon viewing an unsettling picture of the victim. He has
also failed to present any evidence that the outcome of the appeal would
have been different had counsel raised the issue.
¶6 While the petition for review presents additional issues,
Follansbee did not raise those issues in the petition for post-conviction
relief filed below. A petition for review may not present issues not first
presented to the trial court. Ariz. R. Crim. P. 32.9(c)(1)(ii); State v. Bortz,
169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991).
¶7 For the reasons stated, we grant review and deny relief.
:gsh
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