821 P.2d 1374 (Ariz.App. Div. 2 1991), 2 CA-CR 90-0528, State v. Jackson

Docket Nº:2 CA-CR 90-0528.
Citation:821 P.2d 1374, 170 Ariz. 89
Party Name:The STATE of Arizona, Appellee, v. Rodney George JACKSON, Appellant.
Case Date:May 16, 1991
Court:Court of Appeals of Arizona
 
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Page 1374

821 P.2d 1374 (Ariz.App. Div. 2 1991)

170 Ariz. 89

The STATE of Arizona, Appellee,

v.

Rodney George JACKSON, Appellant.

No. 2 CA-CR 90-0528.

Court of Appeals of Arizona, Second Division, Department A

May 16, 1991

Page 1375

Redesignated as Opinion June 19, 1991. Review Denied Jan. 21, 1992.

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[170 Ariz. 91] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, and Randall M. Howe, Phoenix, for appellee.

Jim D. Himelic, Tucson, for appellant.

OPINION

HATHAWAY, Judge.

Appellant was convicted after a jury trial of two counts of sexual abuse of a person under the age of 15 years, one count of child molestation, one count of sexual conduct with a person under the age of 15 years, and two counts of attempted sexual conduct with a person under the age of 15 years. He was sentenced to a mitigated term of five years' imprisonment for each conviction of sexual abuse, the presumptive term of 17 years' imprisonment for the molestation conviction, a mitigated term of 15 years' imprisonment for the sexual conduct conviction and five years' probation for each of the convictions for attempted sexual conduct, all of the sentences to be served consecutively.

On appeal, he asserts five errors: (1) he received ineffective assistance of counsel; (2) the trial court erred in permitting an expert witness to testify about the credibility of the victim; (3) his right to equal protection was violated by the exclusion of the only black person from the jury; (4) the state failed to establish a sufficient chain of custody to allow the admission of certain exhibits; and, (5) the trial court erred in imposing sentence. We affirm as modified below.

INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant's first argument is that his trial counsel was ineffective because he did not seek a plea bargain. In State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989), our supreme court stated, "We will not reverse a conviction on ineffective assistance of counsel grounds on direct appeal absent a separate evidentiary hearing concerning counsel's actions or inactions." The court stated that such an issue should be raised in post-conviction proceedings under Ariz.R.Crim.P. 32, 17 A.R.S. The court also stated that, even in the absence of an evidentiary hearing, an appellate court may consider the claim when the court can "clearly determine from the record that the ineffective assistance claim is meritless ..." Id.

To establish ineffective assistance of counsel, appellant must show that (1) counsel's representation fell below an objective standard of reasonableness; and, (2) this performance prejudiced the defense. State v. Nash, 143 Ariz. 392, 694 P.2d 222, cert. denied 471 U.S. 1143, 105 S.Ct. 2689, 86 L.Ed.2d 706 (1985). Appellant has no constitutional right to a plea agreement, and the state is not required to offer one. State v. Draper, 162 Ariz. 433, 784 P.2d 259 (1989); State v. Rodriguez, 158 Ariz. 69, 761 P.2d 143 (App.1988). The record does not indicate that the state ever offered a plea agreement. Therefore, whether appellant could have obtained a favorable deal if his counsel had pursued a plea agreement, is speculative at best. Appellant has the burden of proof in establishing the claim and with regard to the issue of prejudice, the proof "must be a demonstrable

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[170 Ariz. 92] reality rather than a matter of speculation." State v. Meeker, 143 Ariz. 256, 264, 693 P.2d 911, 919 (1984). Appellant has not and cannot meet his burden of proof.

EXPERT WITNESS

Appellant next argues...

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