State v. Falkenburry

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
PATRICIA FALKENBURRY, Petitioner.
No. 1 CA-CR 16-0218 PRPC
FILED 8-22-2017
Petition for Review from the Superior Court in Yavapai County
No. P1300CR200901255
The Honorable Tina R. Ainley, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Yavapai County Attorney’s Office, Prescott
By George Rodriguez
Counsel for Respondent
Patricia Falkenburry, Goodyear
Petitioner
STATE v. FALKENBURRY
Decision of the Court
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Paul J. McMurdie joined.
T H O M P S O N, Judge:
¶1 Patricia Falkenburry petitions this court for review from the
dismissal of her 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 and deny relief.
¶2 A jury found Falkenburry guilty of transportation of a
dangerous drug for sale (methamphetamine), possession of
methamphetamine drug paraphernalia, and misconduct involving
weapons. 1 The court imposed concurrent prison terms—the longest being
seven years for the transportation of a dangerous drug offense.
Falkenburry filed a premature notice of post-conviction relief, and on direct
appeal, this court affirmed her convictions and sentences.
¶3 Assigned Rule 32 counsel filed a petition for post-conviction
relief, claiming Falkenburry’s trial counsel provided constitutionally
ineffective assistance. As the bases for her claim, Falkenburry argued
counsel failed to cross-examine a witness and to argue a Rule 20 motion.2
The State responded (and included an affidavit by Falkenburry’s trial
counsel), Falkenburry replied, and the trial court summarily denied the
petition. This timely petition for review followed. We review for an abuse
of discretion. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19, 278 P.3d 1276, 1280
(2012).
1 The jury also found Falkenburry guilty of Count 2, possession of
methamphetamine, which the parties subsequently stipulated to
dismissing.
2 Falkenburry also mentioned a possible issue regarding the amount
of credit she received for time served during pre-trial incarceration. That
issue appears to be resolved, and, in any event, the petition for review does
not mention an issue regarding her release credits.
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STATE v. FALKENBURRY
Decision of the Court
¶4 “Defendants are not guaranteed perfect counsel, only
competent counsel.” State v. Valdez, 160 Ariz. 9, 15, 770 P.2d 313, 319 (1989),
overruled on other grounds by Krone v. Hotham, 181 Ariz. 364, 366–67, 890 P.2d
1149, 1151–52 (1995). To state a colorable claim of ineffective assistance of
counsel (IAC), a defendant must show that counsel’s performance fell
below objectively reasonable standards and that the deficient performance
resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S.
668, 687-88 (1984); State v. Nash, 143 Ariz. 392, 397-98, 694 P.2d 222, 227-28
(1985) (adopting the Strickland test). Courts “must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance[,]” and must make “every effort . . . to
eliminate the distorting effects of hindsight[.]” Strickland, 466 U.S. at 689.
Furthermore, “we must presume ‘counsel’s conduct falls within the wide
range of reasonable professional assistance’ that ‘might be considered
sound trial strategy.’” State v. Denz, 232 Ariz. 441, 444, ¶ 7, 306 P.3d 98, 101
(App. 2013) (internal quotations and citations omitted). And
“[d]isagreements as to trial strategy . . . will not support a claim of
ineffective assistance of counsel as long as the challenged conduct could
have some reasoned basis.” State v. Meeker, 143 Ariz. 256, 260, 693 P.2d 911,
915 (1984).
¶5 Throughout her petition for review, Falkenburry fails to cite
to the record or supporting authority. A petition for review must set forth
specific claims, present sufficient argument supported by legal authority
and include citation to the record. See Ariz. R. Crim. P. 32.9(c)(1)(ii) - (iv).
Nonetheless, Falkenburry requests we “review [the trial court’s] findings,
dismiss the charges against [her] and a set a new trial.” Generally,
Falkenburry repeats the points made in her petition for post-conviction
relief. Apparently referring to the dismissal of her Rule 32 proceeding,
Falkenburry specifically challenges the trial court’s findings that trial
counsel, based on counsel’s affidavit, was prepared to cross-examine the
witness but chose not to for tactical reasons. 3 Falkenburry refers to
counsel’s decision to forego cross-examination, because, in counsel’s
opinion, cross-examination would not have been in Falkenburry’s best
interest. Based on the fact she was convicted, Falkenburry posits that
counsel’s rational is nonsensical. However, “[d]efense counsel’s
determinations of trial strategy, even if later proven unsuccessful, are not
ineffective assistance of counsel.” Valdez, 160 Ariz. at 14, 770 P.2d at 318.
3 We note that the superior court judge who dismissed the Rule 32
proceedings was the same judge who presided over Falkenburry’s trial.
Accordingly, that judge was in a preferable position vis-à-vis this court to
determine the veracity of counsel’s avowals.
3
STATE v. FALKENBURRY
Decision of the Court
Consequently, the fact that Falkenburry was convicted does not by itself
indicate trial counsel’s ineffectiveness.
¶6 The trial court dismissed the petition for post-conviction relief
in an order that clearly identified and correctly ruled upon the issues raised.
Further, the court did so in a thorough, well-reasoned manner that will
allow any future court to understand the court’s rulings. Under these
circumstances, “[n]o useful purpose would be served by this court
rehashing the trial court’s correct ruling in a written decision.” State v.
Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). Therefore, we
adopt the trial court’s ruling and deny relief.
¶7 On review, Falkenburry does not challenge the trial court’s
denial of the IAC claim based on counsel’s failure to argue a Rule 20 motion.
Falkenburry has, therefore, abandoned that argument, and we do not
address it. See State v. Rodriguez, 227 Ariz. 58, 61 n.4, ¶ 12, 251 P.3d 1045,
1048 n.4 (App. 2010) (declining to address argument not presented in
petition).
¶8 We grant review and deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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