State v. Frank ( 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NOTICE: NOT FOR PUBLICATION.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.
BARRY MARTIN FRANK, Petitioner.
No. 1 CA-CR 13-0041 PRPC
FILED 08-14-2014
Petition for Review from the Superior Court in Maricopa County
No. CR2005-008678-001
The Honorable John R. Hannah, Jr., Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Office of the Attorney General, Phoenix
By Theodore Campagnolo
Counsel for Respondent
Barry Martin Frank, Buckeye
Petitioner Pro Se
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Maurice Portley and Judge Margaret H. Downie joined.
STATE v. FRANK
Decision of the Court
T H U M M A, Judge:
¶1 Petitioner Barry Martin Frank seeks review of the superior
court’s order denying his petition for post-conviction relief, filed pursuant
to Arizona Rule of Criminal Procedure 32.1. Absent an abuse of discretion
or error of law, this court will not disturb a ruling on a petition for post-
conviction relief. See State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19, 278 P.3d 1276,
1280 (2012). Finding no such error, this court grants review but denies relief.
¶2 In 2006, Frank pled guilty to two counts of theft and was
placed on probation for four years on both convictions. Conditions of
probation included a requirement that Frank pay significant restitution. In
2009, the State petitioned to revoke Frank’s probation, alleging he failed to
comply with two conditions of probation. After one witness testified at the
probation violation hearing, Frank admitted he violated the conditions of
his probation as alleged. The court then revoked both of Frank’s probation
grants and sentenced him to 2.5 years’ imprisonment for each count, to be
served consecutively. Frank then filed a pro se petition for post-conviction
relief after his counsel found no colorable claims for relief. The superior
court awarded Frank additional credit for presentence incarceration but
summarily dismissed the remaining portions of Frank’s petition. Frank
now seeks review of that decision. This court has jurisdiction pursuant to
Arizona Rule of Criminal Procedure 32.9(c).
¶3 Frank attempts to take issues and arguments from his petition
for post-conviction relief and incorporate them by reference into his petition
for review. Further, Frank’s petition for review contains many references to
issues for which he provides little or no supporting argument, no
supporting legal authority and no citation to the record. A petition for
review may not simply incorporate by reference issues or arguments.
Instead, the petition must set forth specific claims, present sufficient
argument supported by legal authority and include citation to the record.
See State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991); Ariz. R.
Crim. P. 32.5, 32.9(c). “[C]ompliance with Rule 32 is not a mere formality;”
a petitioner must “strictly comply” with Rule 32 in order to show an
entitlement to relief. Canion v. Cole, 210 Ariz. 598, 600 ¶ 11, 115 P.3d 1261,
1263 (2005). Accordingly, this court addresses only those issues for which
Frank sets forth specific claims supported by sufficient argument and
citation to legal authority and the record, recognizing Frank has abandoned
and waived any other claims.
¶4 Frank first argues there was an insufficient factual basis to
support his original guilty pleas. If Frank wished to challenge his original
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STATE v. FRANK
Decision of the Court
pleas, he had to do so in a timely petition for post-conviction relief. See Ariz.
R. Crim. P. 32.4(a). Because Frank did not file such a timely petition making
such a challenge, and because no potentially applicable exceptions apply,
any claim regarding the factual basis of his original guilty pleas is
precluded. Ariz. R. Crim. P. 32.2(a)-(b).
¶5 Frank next argues there was an insufficient factual basis to
find he violated the conditions of his probation. The factual basis was more
than sufficient. The State need only establish a violation of a condition of
probation by a preponderance of the evidence. Ariz. R. Crim. P. 27.8(b)(3);
State v. Tulipane, 122 Ariz. 557, 558, 596 P.2d 695, 696 (1979). Frank admitted
he violated condition one of the “white collar” conditions of probation
when he entered into a new business enterprise without prior written
approval from the probation department. Frank also admitted he violated
condition sixteen of his probation when he failed to make the required
monthly payments towards restitution and fell delinquent in those
payments. A probationer’s admission to a failure to comply with the
conditions of probation is a sufficient basis upon which to revoke probation.
See State v. Lay, 26 Ariz. App. 64, 65, 546 P.2d 41, 42 (1976). Given Frank’s
admissions, there was more than a sufficient factual basis to find Frank
violated the terms of his probation.
¶6 Frank next argues his trial counsel was ineffective for various
reasons. 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. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To show
prejudice, a 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.” Id. at 694.
¶7 Frank argues his trial counsel at the revocation hearing was
ineffective when he failed to listen to and/or object to a recorded
conversation between Frank and another person that was played at the
violation hearing that Frank argues was illegally recorded. Frank offers no
authority to support his general claim that the recording was inadmissible
in evidence and does not explain how the contents of that recording were
prejudicial, especially in light of his admissions. He has, therefore, failed to
state a colorable claim for relief on this ground.
¶8 Frank also argues his counsel was ineffective when he failed
to cross-examine witnesses. Frank fails to state a colorable claim for relief
on this ground because he does not identify any witness counsel failed to
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STATE v. FRANK
Decision of the Court
cross-examine, does not explain what counsel should have asked those
witnesses or addressed with those witnesses and does not otherwise
explain how the failure to cross-examine any witness prejudiced him.
Instead, Frank merely complains that anyone who spoke against him was
lying.
¶9 One witness testified at the hearing before Frank decided to
admit he violated the conditions of his probation. Frank’s counsel cross-
examined that witness and Frank does not explain how that cross-
examination fell below objectively reasonable standards other than to
complain that the witness was lying. Further, if Frank is referring to the
victims who spoke against him at sentencing, a defendant has no right to
confront witnesses at a sentencing hearing. See State v. Thomas, 110 Ariz.
106, 109, 515 P.2d 851, 854 (1973). If Frank is referring to the “witnesses”
who addressed the court at the violation hearing after Frank admitted his
violations, the parties agreed that the remaining witnesses who appeared
to testify at the violation hearing could address the court. Two of those
witnesses spoke in support of Frank. One witness spoke against Frank.
Frank had no right to confront that witness at that time because it was the
functional equivalent of addressing the court at sentencing.
¶10 Frank also argues his counsel was ineffective because he
offered no defense. If Frank refers to a failure to offer a defense to the
original charges prior to Frank’s guilty pleas, that claim is precluded
because Frank should have raised the issue in a post-conviction relief
proceeding after the court initially placed him on probation. If Frank refers
to the failure to offer a defense to the allegation that he violated the
conditions of his probation, quite apart from Frank admitting violations of
those conditions, Frank has failed to identify what defenses counsel should
have raised and how the failure to raise those defenses fell below objectively
reasonable standards. To merely claim that all the allegations against Frank
are false and that everyone who spoke against Frank is lying is not sufficient
to present a colorable claim.
¶11 Frank next argues his counsel was ineffective when he
allowed people in the courtroom to photograph Frank prior to the
sentencing hearing when Frank was in “the line” or on “the chain” with
other defendants. The record shows that when Frank’s counsel learned that
someone may have taken Frank’s photograph, counsel alerted court
personnel, objected and asked the court to confiscate the cameras and cell
phones of the alleged photographers. Frank has failed to state a colorable
claim for relief on this ground.
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STATE v. FRANK
Decision of the Court
¶12 Frank next argues his counsel was ineffective when he failed
to present additional mitigating evidence for the court’s consideration at
sentencing. Because Frank does not identify what additional mitigating
evidence counsel should have provided to the court, he has failed to state a
colorable claim for relief on this ground.
¶13 Frank also argues the imposition of consecutive sentences
violated the terms of his plea agreement and that the sentences were
excessive in general and pursuant to the terms of his plea agreement. There
is nothing in his plea agreement that prevented the imposition of
consecutive sentences of 2.5 years’ imprisonment if his probation grant was
revoked and there is nothing to suggest those sentences are excessive. Frank
has failed to state a colorable claim for relief on this ground.
¶14 Frank next contends the prosecutor engaged in misconduct
and that the prosecution was selective and vindictive. Because Frank fails
to identify any recognized form of misconduct on the part of the prosecutor
or provide any basis to suggest his prosecution was vindictive and/or
selective, Frank has failed to state a colorable claim for relief on this ground.
¶15 Finally, Frank argues the court erred when it failed to allow
witnesses to speak on Frank’s behalf at sentencing. He also asserts the court
erred when it considered the materials and information identified at
sentencing because that information was so unfavorable to Frank. Frank,
however, does not identify any witness the court refused to allow to speak
on his behalf and does not identify what information those unidentified
witnesses could have provided. Further, the record shows the court did not
refuse to allow anyone to speak on Frank’s behalf at sentencing. Moreover,
Frank offers no legal reason why the court could not consider the materials
and information the court considered for sentencing purposes. Frank has,
therefore, failed to state a colorable claim for relief on these grounds.
¶16 While Frank’s petition for review and reply present
additional issues for which Frank arguably provides sufficient support,
Frank did not raise those issues in the petition for post-conviction relief filed
with the superior court. A petition for review may not present issues that
petitioner did not first raise with the superior court. See Bortz, 169 Ariz. at
577, 821 P.2d at 238; Ariz. R. Crim. P. 32.9(c)(1)(ii). Further, this court will
not consider arguments or issues first raised in a reply. See State v. Watson,
198 Ariz. 48, 51 ¶ 4, 6 P.3d 752, 755 (App. 2000). Accordingly, all other issues
Frank references in his petition for review and reply that are not otherwise
addressed above are deemed abandoned and waived because Frank failed
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STATE v. FRANK
Decision of the Court
to provide sufficient argument and/or citation to both legal authority and
the record.
¶17 This court grants review and denies relief.
:gsh
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