State v. Rose ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
SCOTT IAN ROSE, Petitioner.
No. 1 CA-CR 22-0382 PRPC
FILED 3-16-2023
Petition for Review from the Superior Court in Maricopa County
No. CR2020-104213-001
The Honorable Jacki Ireland, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Douglas Gerlach
Counsel for Respondent
Maricopa County Legal Advocate’s Office, Phoenix
By Kyle Kinkead
Counsel for Petitioner
STATE v. ROSE
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins, Judge Angela K. Paton, and Judge D.
Steven Williams delivered the decision of the court.
PER CURIAM,
¶1 Scott Rose petitions this court for review from the dismissal
of his petition for post-conviction relief (“PCR”) filed under Arizona Rule
of Criminal Procedure 33. We have considered the petition for review and,
for the reasons stated, grant review but deny relief.
FACTUAL AND PROCEDURAL HISTORY
¶2 The State arrested Rose after the victim and a witness told
police that Rose threatened the victim with a knife. Several months later,
the victim filed documents “recanting [his] statements” because “no assault
happened.” The victim claimed that he and Rose were arguing about Rose’s
substance abuse and mental health, the victim contacted police hoping to
get Rose treatment, and the incident was taken “out of context.” The State
continued to prosecute Rose on charges of aggravated assault, preventing
use of a telephone in an emergency, and resisting arrest.
¶3 Rose pleaded guilty to aggravated assault pursuant to a plea
agreement and was placed on two years’ supervised probation. Twenty
days into the probationary period, the State petitioned to revoke.
¶4 Rose admitted violating the condition that he reside in an
approved residence, and he elected to immediately proceed with
disposition. Rose’s probation officer and the prosecutor both recommended
that probation be revoked and that Rose be sentenced to the presumptive
term. In support of revocation, the prosecutor submitted that Rose had a
history of “victim offenses,” the present offense was “a very violent
aggravated assault” and Rose’s “fifth felony conviction” committed not
long “after his release from prison in a different felony conviction,” Rose
had many misdemeanors that “appear[ed] to be violent in nature,” and he
had “absconded pretty much immediately after sentencing in this matter.”
The prosecutor urged the court to impose a presumptive term based on the
“violent nature” of the present offense and Rose’s “criminal history.”
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STATE v. ROSE
Decision of the Court
¶5 Defense counsel asked the court to reinstate probation with
an initial jail term of 30 days and a mental health evaluation. Counsel
emphasized that Rose had successfully completed probation in the past and
argued that his current noncompliance stemmed from mental health issues
compounded by a history of homelessness. Rose personally addressed the
court as well—apologizing for his noncompliance, promising to do better if
reinstated, and insisting that his prior and current offenses were not violent.
The victim had opted not to receive notice of probation matters and was not
at the hearing.
¶6 The superior court revoked probation, reasoning that Rose
was 35 years old, had “plenty of chances at probation” having “been on
probation several times before,” and was now convicted of a “violent
offense” that constituted his “fifth felony.” The court sentenced him to the
presumptive term of three and a half years’ imprisonment after finding that
“the aggravating and mitigating factors balance each other out.”
¶7 Rose timely sought post-conviction relief. He claimed
ineffective assistance of counsel (“IAC”) based on his counsel’s failure to (1)
inform the court of the victim’s wishes, (2) counter the State’s “misleading
characterization” of Rose’s criminal record, and (3) “present meaningful
mental health mitigation.” Rose also claimed the State violated the victim’s
rights by not contacting him to provide input at the disposition hearing.
Rose included with his petition the victim’s earlier filed statements
recanting his accusations. The petition also stated that the victim contacted
PCR counsel after the disposition and told counsel he never believed prison
was appropriate, he would not have called the police if he knew Rose might
be sent to prison, the incident was taken out of context, and he wished to
be involved in the case but was not contacted to provide input.
¶8 The superior court summarily dismissed Rose’s claims. He
seeks review of one claim only—IAC based on counsel’s failure to present
the victim’s views as a mitigating factor. We have jurisdiction under Article
6, Section 9, of the Arizona Constitution, A.R.S. § 13-4239(C), and Arizona
Rule of Criminal Procedure 33.16.
DISCUSSION
¶9 A defendant proves IAC by showing both “that counsel’s
conduct fell below an objective standard of reasonableness and that he was
prejudiced thereby.” State v. Bigger, 251 Ariz. 402, 407, ¶ 8 (2021) (citing
Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). The defendant’s
failure to prove either prong is fatal to an IAC claim. State v. Pandeli, 242
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STATE v. ROSE
Decision of the Court
Ariz. 175, 181, ¶ 6 (2017). To warrant an evidentiary hearing on the claim,
the defendant must “allege[ ] facts which, if true, would probably have
changed the verdict or sentence.” Bigger, 251 Ariz. at 407, ¶ 9 (quoting State
v. Amaral, 239 Ariz. 217, 220, ¶ 11 (2016)). It “‘is not enough for the
defendant to show that the errors had some conceivable effect on the
outcome of the proceeding,’ because then ‘[v]irtually every act or omission
of counsel would meet that test.’” Pandeli, 242 Ariz. at 181, ¶ 6 (quoting
Strickland, 466 U.S. at 693).
¶10 We review the superior court’s PCR decision for an abuse of
discretion, which occurs if the “court makes an error of law or fails to
adequately investigate the facts necessary to support its decision.” Id. at 180,
¶ 4. IAC claims entail mixed questions of fact and law. Id.
¶11 The superior court did not abuse its discretion by denying
relief to Rose. Rose admitted that he committed aggravated assault with a
deadly weapon and to having four prior felony convictions—circumstances
the court relied on in deciding his sentence. Nothing in the record reveals
indicates that the victim’s input would have had any influence on the court.
Thus, even if the court had considered the victim’s desire that Rose not be
imprisoned or belief that the assault was misconstrued, Rose has not shown
that such information would have likely changed the sentence imposed.
CONCLUSION
¶12 For these reasons, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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