State v. Speers, 2 CA–CR 2015–0315–PR.

• Decision Date: 02 November 2015
• Docket Number: No. 2 CA–CR 2015–0315–PR.,2 CA–CR 2015–0315–PR.
• Citation: 238 Ariz. 423,361 P.3d 952
• Parties: The STATE of Arizona, Respondent, v. Phillip Gregory SPEERS, Petitioner.
• Court: Arizona Court of Appeals

238 Ariz. 423

361 P.3d 952

The STATE of Arizona, Respondent,

v.Phillip Gregory SPEERS, Petitioner.

No. 2 CA–CR 2015–0315–PR.

Court of Appeals of Arizona, Division 2.

Nov. 2, 2015.

Jon R. Smith, Yuma County Attorney, Yuma, Counsel for Respondent.

Law Office of Harley Kurlander By Harley Kurlander, Tucson, Counsel for Petitioner.

OPINION

ESPINOSA, Judge:

¶ 1 Petitioner Phillip Gregory Speers seeks review of the trial court's order summarily denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R.Crim. P., alleging, inter alia,claims of ineffective assistance of counsel. We grant review and, for the following reasons, we vacate the court's order in part and remand the case for an evidentiary hearing on two of Speers's claims.

Relevant Procedural History

¶ 2 This post-conviction proceeding relates to Speers's second jury trial in this cause for charges brought against him in 2000. He was convicted in 2003 of four counts of child molestation and one count of sexual conduct with a minor involving four girls who had been students in his second-grade class. The trial court sentenced him to prison terms totaling seventy-one years. We reversed Speers's convictions on appeal, concluding the court had erred in “precluding expert testimony regarding suggestive interview techniques and its influence on children's memories” and that the error “[could not] be deemed harmless.” State v. Speers,1 CA–CR 03–0812, ¶¶ 8–9, 34 (memorandum decision filed Feb. 24, 2005).

¶ 3 After the case was remanded in 2005, Speers waived his right to counsel and began representing himself, with the assistance of advisory counsel Kristi Riggins. On the seventh day of trial, the court granted Speers's request to appoint Riggins to represent him for the remainder of the proceedings.

¶ 4 The jury began deliberating on the fourteenth day of trial. During deliberations, the foreperson sent the trial court a note reporting that one of the jurors had asked an adult relative, who had been molested as a child, about the clarity of her memories of those events and that he had related her responses to other jurors. After questioning each of the jurors, the court denied Riggins's request for a mistrial; excused juror eleven, who reportedly had made the statements about his relative; recalled an alternate juror to service; and directed the jury to begin deliberations anew.²

¶ 5 On the nineteenth day of trial, the jury found Speers guilty of molesting M.G. and M.A., as alleged in counts three and five of the indictment, and acquitted him of the other charges. Riggins filed a motion for new trial raising numerous issues, including a claim that juror misconduct had warranted a mistrial. The trial court denied the motion and sentenced Speers to two consecutive seventeen-year prison terms. Speers represented himself on appeal, and this court affirmed his convictions and sentences, rejecting, inter alia,his claim that he had been entitled to a mistrial based on juror eleven's misconduct. State v. Speers,1 CA–CR 07–0796, 2010 WL 2176083 (memorandum decision filed June 1, 2010).

¶ 6 In his Rule 32 petition below, Speers alleged Riggins, in her role as trial counsel, had rendered ineffective assistance in the following ways: (1) abandoning a proposed jury instruction on contributing to the delinquency of a minor as a lesser-included offense of molestation; (2) interfering with his right to self-representation by failing to inform him, before he agreed to waive his right and be represented by her, of her intent to withdraw his request for the instruction; and (3) failing to develop a record of alleged misconduct by another juror, juror two, thereby precluding him from raising the issue on appeal. He also claimed, as a newly discovered material fact entitling him to a new trial, see Ariz. R.Crim. P. 32.1(e), that juror thirteen wrongly failed to disclose during voir dire that he had worked for the Yuma County Detention Center when Speers was incarcerated there during his first trial. With respect to this last claim, he argued, in the alternative, that previously assigned Rule 32 counsel³had rendered ineffective assistance in failing to investigate juror thirteen's alleged misconduct in a timely manner.

¶ 7 Speers supported his petition with his own affidavits and the affidavits of others, including juror two and C.W., an apparent friend who averred she had voluntarily assisted Speers during his trials with such activities as “typing, phone calls, [and] finding case law.” He also submitted transcripts of recorded interviews with jurors eleven and thirteen, supported by an affidavit of current counsel regarding reasons affidavits from these jurors were unavailable. He additionally provided the affidavit of attorney Harold L. Higgins Jr., who averred he had forty years' experience in criminal law and opined that Riggins's performance “fell below community standards and was ineffective under prevailing case law” with respect to the following two issues: (1) her failure to request a lesser-included offense instruction that “was appropriate both factually and legally” and relevant to “the counts on which guilty verdicts were returned” and (2) her failure to present the trial court with extrinsic evidence, “by affidavit or other verifying documentation,” of juror two's alleged jury misconduct, thereby “fail[ing] to preserve the issue for direct appellate review.”

¶ 8 The trial court summarily denied the petition, finding Speers failed to state a colorable claim for relief. In addition, the court found Speers's ineffective assistance claims precluded by his failure to raise them on direct appeal. This petition for review followed.

Discussion

¶ 9 A trial court must summarily dismiss a Rule 32 petition if all claims are precluded or if, with respect to non-precluded claims, it finds no “material issue of fact or law exists which would entitle the defendant to relief.” Ariz. R.Crim. P. 32.6(c). But a defendant is entitled to a hearing if a non-precluded claim for post-conviction relief “is colorable.” State v. Bennett,213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006). A colorable claim is one that has “the appearance of validity,” State v. Boldrey,176 Ariz. 378, 380, 861 P.2d 663, 665 (App.1993)—“one that, if the allegations are true, might have changed the outcome,” State v. Runningeagle,176 Ariz. 59, 63, 859 P.2d 169, 173 (1993).

¶ 10 We review a summary denial of post-conviction relief for an abuse of discretion, which may include an error of law. See State v. Petty,225 Ariz. 369, ¶ 7, 238 P.3d 637, 639 (App.2010). Although a defendant's entitlement to an evidentiary hearing “is, to some extent, a discretionary decision for the trial court,” that court “must be mindful ... that when doubt exists, ‘a hearing should be held to allow the defendant to raise the relevant issues, to resolve the matter, and to make a record for review.’ ” State v. D'Ambrosio,156 Ariz. 71, 73, 750 P.2d 14, 16 (1988), quoting State v. Schrock,149 Ariz. 433, 441, 719 P.2d 1049, 1057 (1986). We review de novo issues of law, such as whether a claim is precluded by waiver pursuant to Rule 32.2(a)(3). See Petty,225 Ariz. 369, ¶ 7, 238 P.3d at 639; see also State v. Denz,232 Ariz. 441, ¶ 6, 306 P.3d 98, 101 (App.2013)(performance and prejudice components of ineffective assistance claim present mixed questions of fact and law).

¶ 11 On review, Speers argues the trial court abused its discretion in concluding he failed to state colorable claims and in determining his ineffective assistance claims were precluded by his failure to raise them on appeal. As addressed below, we agree with Speers that his claims are not precluded. We also conclude he was entitled to a hearing on his claims that counsel was ineffective in abandoning a proposed jury instruction and in failing to develop a record of alleged misconduct by juror two. But we find no abuse of discretion in the court's summary denial of Speers's claims alleging counsel's impairment of his right of self-representation and newly discovered evidence of misrepresentations by juror thirteen.

Ineffective Assistance of Counsel

¶ 12 “To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant.” Bennett,213 Ariz. 562, ¶ 21, 146 P.3d at 68, citing Strickland v. Washington,466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on such a claim, a defendant must overcome the “strong presumption” that counsel performed “within the wide range of reasonable professional assistance” by demonstrating that counsel's conduct fell below “prevailing professional norms.” Strickland,466 U.S. at 687–89, 104 S.Ct. 2052; see also State v. Febles,210 Ariz. 589, ¶ 20, 115 P.3d 629, 636 (App.2005); State v. Herrera,183 Ariz. 642, 647, 905 P.2d 1377, 1382 (App.1995). Thus, he is “required to show counsel's decisions were not tactical in nature, but were instead the result of ‘ineptitude, inexperience or lack of preparation.’ ” Denz,232 Ariz. 441, ¶ 7, 306 P.3d at 101, quoting State v. Goswick,142 Ariz. 582, 586, 691 P.2d 673, 677 (1984).

¶ 13 A defendant establishes prejudice resulting from such deficient performance “if [ ]he can show a ‘reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Bennett,213 Ariz. 562, ¶ 25, 146 P.3d at 69, quoting Strickland,466 U.S. at 694, 104 S.Ct. 2052; see also Nix v. Whiteside,475 U.S. 157, 175, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986)( Strickland's prejudice component does not require defendant to establish attorney's errors “more likely than not” altered result).

Preclusion

¶ 14 Rule 32.2(a)(3)precludes relief on a claim that has been “waived at trial, on appeal, or in any previous collateral proceeding.” This is Speers's first...