State v. Brakhop ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DALE BRAKHOP, Petitioner.
No. 1 CA-CR 16-0510 PRPC
FILED 8-17-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2013-423334-002
The Honorable Teresa A. Sanders, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Arthur G. Hazelton, Jr.
Counsel for Respondent
Dale Brakhop, Florence
Petitioner
STATE v. BRAKHOP
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer B. Campbell joined.
B R O W N, Judge:
¶1 Dale Brakhop petitions this court for review from the
dismissal of his petition for post-conviction relief (“PCR”). We have
considered the petition for review and, for the reasons stated, grant review
and deny relief.
¶2 After videotaping, photographing, and engaging in sexual
conduct with a young child, Brakhop and his co-defendant were charged
with eleven counts of sexual exploitation of a minor, nine counts of sexual
conduct with a minor, four counts of child molestation, and one count of
bestiality. Brakhop pled guilty to one count of sexual conduct with a minor,
one count of attempted sexual conduct with a minor, and one count of
attempted sexual exploitation of a minor. Brakhop stipulated to a term of
twenty years’ imprisonment for sexual conduct, and to terms of lifetime
probation for the other two counts. The superior court accepted the plea
agreement and sentenced Brakhop according to its terms.
¶3 Brakhop timely filed his notice of post-conviction relief.
Counsel was appointed but could not find any colorable claims to raise.
Brakhop then filed a pro se petition claiming ineffective assistance of trial
and PCR counsel. He also claimed the superior court violated his
constitutional rights when it denied his motion for change of counsel based
on counsel’s performance before he decided to enter his plea agreement.
The superior court summarily dismissed Brakhop’s petition, and this
petition for review followed.1
¶4 Absent an abuse of discretion, this court will not disturb the
trial court’s ruling on a petition for post-conviction relief. State v. Gutierrez,
1 Although the petition for review presents additional issues, Brakhop
did not raise these issues in the PCR petition he filed in the superior court.
Therefore, we do not consider them. A petition for review may not present
issues not first presented to the superior court. State v. Bortz, 169 Ariz. 575,
577 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).
2
STATE v. BRAKHOP
Decision of the Court
229 Ariz. 573, 577, ¶ 19 (2012). Brakhop has failed to show an abuse of
discretion.
¶5 Brakhop argues that his trial counsel failed to adequately
investigate his case, but this claim is too general to be colorable. An alleged
failure to investigate does not meet the prejudice prong when the defendant
does not explain what evidence additional investigation would have
discovered and how it might have changed the outcome. See Gallego v.
McDaniel, 124 F.3d 1065, 1077 (9th Cir. 1997); Hendricks v. Calderon, 70 F.3d
1032, 1036-37, 1042 (9th Cir. 1995) (“Absent an account of what beneficial
evidence investigation into any of these issues would have turned up,
Hendricks cannot meet the prejudice prong of the Strickland test.” (citing
Strickland v. Washington, 466 U.S. 668, 687-90 (1984)).
¶6 Brakhop also asserts his trial counsel failed to establish “lies
stated by law enforcement.” Had counsel done so, he could have gone to
trial and impeached the police witnesses. Then the jury would have
believed him and not the police, he argues, and the outcome of his case
would have been different. This claim is not colorable. Even if counsel had
impeached the police officers at trial, no reasonable probability exists that a
jury would have acquitted Brakhop given the videotapes and photographs
which depict him and his co-defendant engaged in sexual acts with the
victim.
¶7 Brakhop next claims that the superior court violated his
constitutional rights when it denied his motion for change of trial counsel.
This claim is waived. The entry of a guilty plea waives all non-jurisdictional
defects, including ineffective assistance of counsel, other than
ineffectiveness in connection with matters directly relating to entry of the
guilty plea. State v. Quick, 177 Ariz. 314, 316 (App. 1993). Furthermore, we
note that the court held a hearing on this motion, but Brakhop has not
provided a transcript of that hearing. Missing portions of the record are
presumed to support the court’s ruling. State v. Geeslin, 223 Ariz. 553, 554,
¶ 5 (2010).
¶8 Finally, Brakhop’s claim that PCR counsel was ineffective is
not cognizable in this action. However, because this is Brakhop’s post-
conviction relief proceeding of-right, ineffective assistance of PCR counsel
3
STATE v. BRAKHOP
Decision of the Court
is a cognizable claim under Rule 32 and may be raised in a timely
subsequent PCR petition.2 State v. Pruett, 185 Ariz. 128, 130-31 (App. 1995).
¶9 We therefore grant review and deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
2 A Rule 32 proceeding asserting ineffective assistance of PCR counsel
must be commenced within thirty days of the issuance of the mandate in
this case. Ariz. R. Crim. P. 32.4(a).
4