Opinion
No. 2 CA-CR 2018-0015-PR
06-29-2018
THE STATE OF ARIZONA, Respondent, v. DANNY ALAN MARLO, Petitioner.
COUNSEL T.S. Hartzell, Tucson 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NOT FOR PUBLICATION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. 31.19(e).
Petition for Review from the Superior Court in Cochise County
No. CR201500300
The Honorable Wallace R. Hoggatt, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
T.S. Hartzell, Tucson
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred.
VÁSQUEZ, Presiding Judge:
¶1 Danny Marlo seeks review of the trial court's ruling 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 abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Marlo has not shown such abuse here.
¶2 Marlo was convicted after a jury trial of transportation of marijuana for sale and sentenced to a four-year prison term. We affirmed his conviction and sentence on appeal. State v. Marlo, No. 2 CA-CR 2016-0053 (Ariz. App. Jan. 12, 2017) (mem. decision). Marlo sought post-conviction relief, arguing his trial counsel had been ineffective by failing to: (1) investigate whether the address used to register the vehicle Marlo had been driving was a vacant lot, as the state had mistakenly claimed at trial; (2) object to testimony describing the content of a video recording from a gas station surveillance camera that had been lost, or to request an instruction pursuant to State v. Willits, 96 Ariz. 184 (1964), with regard to the video; and (3) object to hearsay testimony that Marlo had paid for gasoline with a $100 bill after going in and out of the gas station bathroom with another man he had met there.
¶3 The trial court summarily denied relief. With regard to Marlo's first claim, the court noted that, although the parties stipulated later in the trial that there was, in fact, a residence at that address, there was still ample evidence the registration had been falsified. The court further observed that any hearsay objection to the video recording was meritless and counsel had requested and been granted a Willits instruction regarding the loss of the video. Finally, the court concluded that although the testimony regarding the $100 bill was inadmissible hearsay, its exclusion would not have altered the result of trial. It also remarked that counsel might have made a tactical decision to forgo an objection because the testimony was consistent with Marlo's defense that he had been hired to deliver the vehicle for $100. This petition for review followed.
¶4 On review, Marlo asserts he raised colorable claims of ineffective assistance and, thus, is entitled to an evidentiary hearing. To be entitled to an evidentiary hearing, Marlo must have "alleged facts which, if true, would probably have changed the verdict or sentence." State v. Amaral, 239 Ariz. 217, ¶¶ 10-11 (2016). And, "[t]o state a colorable claim of ineffective assistance of counsel," Marlo "must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced [him]." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006); accord State v. Kolmann, 239 Ariz. 157, ¶ 9 (2016); see also Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984). To show prejudice, he must demonstrate that there is a "reasonable probability"—that is, "a probability sufficient to undermine confidence in the outcome" of the trial—that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
¶5 In his petition for review, Marlo raises several instances of claimed ineffective assistance for the first time, including that counsel failed to request the "cell phone records" of the investigating detective, explore whether "a federal surveillance program" had passed information to the state leading to Marlo's arrest, effectively cross-examine the detective about his testimony concerning Marlo's vehicle, or raise various evidentiary objections. We do not address claims not raised below. See State v. Fowler, 156 Ariz. 408, 414 (App. 1987).
¶6 Related to his claim that counsel should have objected to the detective's testimony describing the surveillance video, Marlo contends counsel should have objected pursuant to the best-evidence rule, Rule 1002, Ariz. R. Evid. Even had Marlo raised this argument below, he does not meaningfully develop it on review by, for example, explaining why the evidence would not have been admissible pursuant to Rule 1004, Ariz. R. Evid. We therefore do not address this argument further. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013). Marlo does not otherwise address the trial court's ruling, much less identify any error in the court's summary rejection of his claims.
¶7 We grant review but deny relief.