Opinion
No. 2 CA-CR 2015-0064-PR
05-12-2015
THE STATE OF ARIZONA, Respondent, v. DAVID ARMANDO GOMEZ, Petitioner.
COUNSEL Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent Barton & Storts, P.C., Tucson By Brick P. Storts, III Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Pima County
No. CR20113324001
The Honorable D. Douglas Metcalf, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent
Barton & Storts, P.C., Tucson
By Brick P. Storts, III
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. KELLY, Presiding Judge:
¶1 David Gomez 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. We will not disturb that ruling unless the court clearly abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Gomez has not met his burden of demonstrating such abuse here.
¶2 After a jury trial, Gomez was convicted of first-degree murder and sentenced to life imprisonment without the possibility of release for twenty-five years. On appeal, we vacated the criminal restitution order entered at sentencing, but otherwise affirmed Gomez's conviction and sentence. State v. Gomez, No. 2 CA-CR 2013-0004 (memorandum decision filed Oct. 29, 2013).
¶3 Gomez sought post-conviction relief, raising claims of ineffective assistance of counsel and "prosecutorial overreaching." Gomez argued counsel had been ineffective in failing to file pretrial motions, object to statements made by the prosecutor and to leading questions, and investigate why a video recording was missing several minutes of the incident underlying Gomez's conviction. He also asserted the prosecutor had committed misconduct by asking leading questions, vouching, introducing "prejudicial" evidence, and showing the video recording to witnesses. The trial court summarily denied relief, and this petition for review followed.
¶4 On review, Gomez asserts the trial court erred by concluding he had failed to show prejudice or that counsel's conduct had no strategic basis, rather than conducting an evidentiary hearing. A defendant is entitled to an evidentiary hearing only if his or her claim is colorable, that is, when the "allegations, if true, would have changed the verdict" or sentence. State v. Krum, 183 Ariz. 288, 292, 903 P.2d 596, 600 (1995). To present a colorable claim of ineffective assistance of counsel, Gomez was required to show that counsel's performance was deficient under prevailing professional norms and that the deficient performance prejudiced him. State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006); see also Strickland v. Washington, 466 U.S. 668, 687 (1984).
On review, Gomez argues only that the trial court erred in rejecting his claim of ineffective assistance of counsel and has abandoned his claims of "prosecutorial overreaching."
¶5 "[D]isagreements as to trial strategy or errors in trial tactics will not support an effectiveness claim so long as the challenged conduct could have some reasoned basis." State v. Meeker, 143 Ariz. 256, 262, 693 P.2d 911, 917 (1984). And a trial court is required to presume counsel's decisions were tactical and had a reasoned basis. See Strickland, 466 U.S. at 689. Thus, the defendant must "show that counsel's decision was not a tactical one but, rather, revealed ineptitude, inexperience or lack of preparation." State v. Goswick, 142 Ariz. 582, 586, 691 P.2d 673, 677 (1984).
¶6 Gomez has not met his burden. In his petition below, Gomez identified several motions he believed trial counsel should have filed. But he did not explain the basis for those motions, identify relevant facts in the record, or cite any authority suggesting the motions would or should have been granted. Similarly, as the trial court noted, Gomez made no effort to demonstrate the missing portion of the video recording could have been found by trial counsel, much less that it would have had any exculpatory value had counsel found it. Unsupported speculation is not sufficient to warrant an evidentiary hearing. See Meeker, 143 Ariz. at 264, 693 P.2d at 919 ("Proof of ineffectiveness must be a demonstrable reality rather than a matter of speculation."); State v. Donald, 198 Ariz. 406, ¶ 21, 10 P.3d 1193, 1201 (App. 2000) (to warrant evidentiary hearing, Rule 32 claim "must consist of more than conclusory assertions").
For example, Gomez claims trial counsel should have filed a pretrial motion to ensure that four witnesses whom were precluded from testifying could have testified in support of his self-defense claim. But he has not indicated what testimony these witnesses would have offered, explained why they were precluded, or identified what legal argument counsel should have made. Indeed, our review of the record shows counsel agreed those witnesses should not be called because they did not see Gomez shoot the victim.
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¶7 Nor did Gomez identify any evidence or cite any authority suggesting that counsel's decision not to object to certain testimony had no reasoned tactical basis. Instead, he asserts the trial court erred by identifying a tactical rationale for those decisions and rejecting his claim on that basis. But we must presume counsel's decisions were strategic. See Strickland, 466 U.S. at 689. To obtain an evidentiary hearing, Gomez must identify evidence that, if taken as true, suggests counsel had no reasoned basis for his decisions. See State v. Denz, 232 Ariz. 441, ¶ 7, 306 P.3d 98, 101 (App. 2013). Gomez has not done so.
¶8 Gomez also asserts there was "a complete breakdown in the adversarial process" and prejudice is thus presumed. See United States v. Cronic, 466 U.S. 648, 657-58 (1984). But, although Gomez has identified several things he believes counsel should have done differently, he has not developed a claim that counsel "entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing," such that we would presume prejudice. See id. at 659. Accordingly, we do not address this argument further. Cf. State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (failure to develop legal argument waives argument on review).
¶9 Although we grant review, we deny relief.