State v. Manygoats ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
KENNETH MANYGOATS, Petitioner.
No. 1 CA-CR 15-0451 PRPC
FILED 5-23-2017
Petition for Review from the Superior Court in Coconino County
No. S0300CR201200586
The Honorable Dan R. Slayton, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Coconino County Attorney’s Office, Flagstaff
By William P. Ring
Counsel for Respondent
Kenneth Manygoats, Buckeye
Petitioner
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge James P. Beene joined.
STATE v. MANYGOATS
Decision of the Court
W I N T H R O P, Judge:
¶1 Petitioner, Kenneth Manygoats, petitions this court for review
of the dismissal of his petition for post-conviction relief, filed pursuant to
Arizona Rule of Criminal Procedure (“Rule”) 32. We have considered the
petition for review and, for the reasons stated, grant review but deny relief.
¶2 A jury found Manygoats guilty on three of four charged
counts: kidnapping, sexual abuse, and assault.1 Manygoats’ defense at trial
was mistaken identity. After finding Manygoats had five prior felony
convictions and caused emotional harm to the victim, the trial court
imposed concurrent, aggravated prison terms for the kidnapping and
sexual abuse convictions, the longest of which was 17 years. The court
sentenced Manygoats to time served for the assault conviction. On direct
appeal, this court affirmed the convictions and sentences. State v.
Manygoats, 1 CA-CR 13-0070, 2013 WL 6095597 (Ariz. App. Nov. 19, 2013)
(mem. decision).
¶3 Manygoats filed a timely notice and petition for post-
conviction relief. In his petition, Manygoats raised a claim of ineffective
assistance of trial counsel based on counsel’s alleged failure to conduct a
thorough pre-trial investigation. Specifically, Manygoats argued counsel
should have investigated the booking police officer’s purported
observation of the absence of scratch marks on Manygoats’ arms.
According to Manygoats, the booking officer’s testimony to this effect
would have impeached the arresting officer’s notation in his report that,
when he confronted Manygoats soon after the reported crimes occurred
and near the crime scene, he observed fresh scratch marks on Manygoats’
left arm. Manygoats also raised in his petition an ineffective assistance of
counsel claim based on counsel’s failure to object to the prosecutor’s
purported attempts to condition the jury during voir dire. The trial court
summarily denied the petition, and this timely petition for review followed.
¶4 “We will not disturb a trial court’s ruling on a petition for
post-conviction relief absent a clear abuse of discretion.” State v. Swoopes,
216 Ariz. 390, 393, ¶ 4, 166 P.3d 945, 948 (App. 2007) (citation omitted). We
are obliged to uphold the trial court if the result is legally correct for any
reason. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984); State v.
Cantu, 116 Ariz. 356, 358, 569 P.2d 298, 300 (App. 1977).
1 The jury returned a “not guilty” verdict on one count of attempted
sexual assault.
2
STATE v. MANYGOATS
Decision of the Court
¶5 On review, Manygoats argues the trial court erred in
concluding that, regardless whether Manygoats’ arm had visible scratches
at the time of his arrest, contradicting evidence on that point would not
have affected the verdicts. Manygoats also argues the court erred in finding
he failed to establish a colorable ineffective assistance of counsel claim
based on counsel’s failure to object to the prosecutor’s questions to the jury
during voir dire.
¶6 Although the petition for review provides general law
regarding the standards for resolving ineffective assistance of counsel
claims and the proper purpose of voir dire, the petition does not (1) provide
substantive arguments that support the ineffective assistance of counsel
claims; (2) identify any legal authority that applies to the ineffective
assistance of counsel claims; (3) apply legal authority to facts that support
the ineffective assistance of counsel claims; or (4) provide citations to the
record.2 And although appendices are permissible under Rule 32.9(c)(1),
the purpose of an appendix is to support references to the record on review,
not circumvent the necessity of presenting a fully and independently
developed argument supported by legal authority and citation to the
record. See Ariz. R. Crim. P. 32.9(c)(1)(iv). Further, Manygoats merely
asserts that counsel was ineffective. Ineffective assistance of counsel must
be a demonstrable reality rather than a matter of speculation. State v.
McDaniel, 136 Ariz. 188, 198, 665 P.2d 70, 80 (1983), abrogation on other
grounds recognized in State v. Walton, 159 Ariz. 571, 593-94, 769 P.2d 1017,
1039-40 (1989) (Feldman, J., concurring). Manygoats has abandoned and
waived his improperly presented and supported arguments.
¶7 Manygoats also implies that the trial court fundamentally
erred in denying his ineffective assistance of counsel claim based on
counsel’s lack of pre-trial investigation. There is no fundamental error
2 Notably, Manygoats does not point out where in the record the
arresting officer testified that he observed scratches on Manygoats’ arm.
Also, we do not address Manygoats’ ineffective assistance of counsel claim
based on his assertion that the lack of scratch marks undermined the
probable cause required for his arrest. He did not raise this argument in his
petition for post-conviction relief, and a petition for review may not present
issues not first presented to the trial court. See State v. Ramirez, 126 Ariz.
464, 468, 616 P.2d 924, 928 (App. 1980); State v. Wagstaff, 161 Ariz. 66, 71, 775
P.2d 1130, 1135 (App. 1988), modified on other grounds, 164 Ariz. 485, 794 P.2d
118 (1990); State v. Bortz, 169 Ariz. 575, 577-78, 821 P.2d 236, 238-39 (App.
1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).
3
STATE v. MANYGOATS
Decision of the Court
review in a post-conviction relief proceeding. State v. Smith, 184 Ariz. 456,
460, 910 P.2d 1, 5 (1996).
¶8 Manygoats fails to establish an abuse of discretion by the trial
court in denying the petition for post-conviction relief. Accordingly,
although we grant review, we deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
4