State v. Andrews ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
LISA LYNN ANDREWS, Petitioner.
No. 1 CA-CR 14-0566 PRPC
FILED 11-17-2016
Petition for Review from the Superior Court in Maricopa County
No. CR2011-127769-001
The Honorable Joseph C. Welty, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Susan L. Luder
Counsel for Respondent
Lisa Lynn Andrews, Goodyear
Petitioner
STATE v. ANDREWS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Margaret H. Downie joined.
N O R R I S, Judge:
¶1 Lisa Lynn Andrews petitions this court for review from the
summary dismissal of her petition for post-conviction relief. We grant
review but deny relief.
¶2 A jury convicted Andrews of possession of dangerous drugs
for sale, possession or use of marijuana, and possession of drug
paraphernalia. This court affirmed her convictions on direct appeal.
¶3 In her petition for review, Andrews argues the arresting
officer lacked probable cause to arrest her and, therefore, the officer’s search
incident to the arrest was unlawful. Because these claims could have been
raised on direct appeal, we do not address them here. Ariz. R. Crim. P.
32.2(a) (defendant precluded from post-conviction relief based upon a
ground that could have been raised on direct appeal); see State v. Shrum, 220
Ariz. 115, 118, ¶ 12, 203 P.3d 1175, 1178 (2009) (“Rule 32.2(a) precludes
collateral relief on a ground that either was or could have been raised on
direct appeal . . . .”) (citation omitted).
¶4 Andrews also argues her trial counsel was ineffective for
failing to challenge the arrest and subsequent search in the superior court.
Reviewing the superior court’s dismissal of Andrews’ petition for
post-conviction relief for an abuse of discretion, we reject this argument. See
State v. Martinez, 226 Ariz. 464, 466, ¶ 6, 250 P.3d 241, 243 (App. 2011)
(appellate court reviews denial of post-conviction relief for an abuse of
discretion). To prevail on a claim of ineffective assistance of counsel, a
defendant must show, first, that counsel’s performance was deficient and,
second, that the deficient performance prejudiced the defendant. Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 686
(1984). A defendant must satisfy both elements to prevail on a claim of
ineffective assistance of counsel. State v. Febles, 210 Ariz. 589, 596, ¶ 18, 115
P.3d 629, 636 (App. 2005).
¶5 Applying that framework here, Andrews has not shown that
she was prejudiced by trial counsel’s failure to challenge the search. “To
2
STATE v. ANDREWS
Decision of the Court
make a warrantless arrest, a police officer must have probable cause to
believe both that a crime has been committed and that the person to be
arrested committed the crime.” State v. Keener, 206 Ariz. 29, 32, ¶ 15, 75 P.3d
119, 122 (App. 2003). As the superior court noted in its dismissal of
Andrews’ post-conviction petition, the arresting officer knew that Andrews
was involved in an altercation where another woman sustained injuries.
“[W]hether probable cause exists depends on all of the facts and
circumstances known at the time of the arrest.” Id. at 32, ¶ 15, 75 P.3d at 122.
Thus, the arresting officer had probable cause to arrest Andrews for assault
and, in turn, conduct a search incident to the arrest. Because the arresting
officer had probable cause, Andrews’ trial counsel was not ineffective for
failing to challenge the search.1
¶6 For the foregoing reasons, the superior court properly
dismissed Andrews’ petition for post-conviction relief. Thus, although we
grant review, we deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
1Subsumed within her ineffective assistance of counsel
argument, Andrews also argues the arresting officer lacked probable cause
because she was the alleged victim—and was acting in self-defense—in the
altercation that led to her arrest. The arresting officer’s police report,
however, indicated that he arrested Andrews based on the injuries to the
other woman involved in the altercation and statements made by other
witnesses. Although Andrews disputes the information contained within
the report, probable cause is determined, as noted above, “on all of the facts
and circumstances known at the time of the arrest.” Keener, 206 Ariz. at 32,
¶ 15, 75 P.3d at 122. Thus, Andrews’ factual dispute with the police report
does not negate probable cause and the officer’s subsequent arrest and
search.
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