Opinion
2 CA-CR 2022-0019-PR
04-21-2022
The State of Arizona, Respondent, v. Jason Brian Mathis, Petitioner.
Jason Mathis, Eloy In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20200517001 The Honorable Christopher Browning, Judge
Jason Mathis, Eloy In Propria Persona
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Eppich and Vice Chief Judge Staring concurred.
MEMORANDUM DECISION
BREAR CLIFFE, Judge
¶1 Jason Mathis seeks review of the trial court's ruling summarily dismissing, in part, his petition for post-conviction relief, filed pursuant to Rule 33, 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). Mathis has not met his burden of establishing such abuse here.
¶2 Pursuant to a "wrap plea agreement," Mathis was convicted of fraudulent schemes and artifices in cause number CR20200517001 and of possession of a dangerous drug for sale and possession of a deadly weapon by a prohibited possessor in cause number CR20184652001. The trial court sentenced him to a slightly aggravated prison term of 12.75 years in cause number CR20200517001, which was to run consecutive to his concurrent prison sentences in cause number CR20184652001, the longer of which was 9.25 years.
¶3 In June 2020, Mathis filed a notice of post-conviction relief under both cause numbers, and the trial court appointed counsel. Mathis subsequently filed a petition, raising two claims for relief: (1) he was entitled to early release credits in cause number CR20184652001, based on "a mutual mistake of fact embodied in the plea agreement," and (2) his trial counsel had been ineffective in failing to present mitigation evidence at sentencing and in arguing against an aggravated sentence in cause number CR20200517001.
¶4 Because the state conceded a "mutual mistake" on the first issue, the trial court granted relief and resentenced Mathis accordingly. However, the court summarily dismissed Mathis's second claim, explaining, "Even if the Court were to assume (arguendo) that trial counsel's performance [at sentencing] was deficient, [Mathis] has failed to [establish] prejudice." The court pointed out that it had considered at sentencing all the evidence Mathis maintained his counsel should have presented in mitigation. This petition for review followed.
¶5 On review, Mathis repeats his claim that his trial counsel was ineffective in arguing against an aggravated sentence. He maintains the trial court's statement that "even if counsel had been deficient, [Mathis] would not have been prejudiced . . . cheapens the adversarial process to the point that there should not be any counsel present for any sentencing." He also seems to challenge the sufficiency of the presentence report and the court's statement at sentencing that Mathis lacked credibility.
Mathis also alleges bias by the trial court and suggests he filed a motion for change of judge that was never ruled upon. He asks us to "look into all of [his] filings in this case since . . . April of 2019." However, we do not address issues raised for the first time on review. See Ariz. R. Crim. P. 32.16(c)(2)(B) (appellate court reviews issues presented to trial court); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (appellate court will not address arguments asserted for first time in petition for review); cf. State v. Garcia-Quintana, 234 Ariz. 267, ¶¶ 5-6 (App. 2014) (defendant required to obtain ruling to preserve issue for review).
¶6 "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." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). A defendant establishes prejudice if he can show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. ¶ 25 (quoting Strickland, 466 U.S. at 694). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." Id. ¶ 21.
¶7 Mathis seems to misapprehend the prejudice analysis. The Supreme Court has made clear that "ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." Strickland, 466 U.S. at 693 ; see also State v. Lee, 142 Ariz. 210, 214 (1984) (adopting Strickland test). This is because "[a]ttorney errors come in an infinite variety," and they are in many cases "likely to be utterly harmless." Strickland, 466 U.S. at 693.
¶8 Mathis received a "slightly aggravated" sentence in cause number CR20200517001. As the trial court pointed out, it had considered Mathis's mental health struggles, family support, and attempts at self-improvement in mitigation at sentencing. The court was also aware of Mathis's substance abuse struggles and remorse. In his petition below, Mathis argued his attorney should have presented mitigating evidence on these same issues. Mathis does not explain on review how he was prejudiced by any purported deficiency in counsel's conduct at sentencing or how the court erred in concluding otherwise. See Ariz. R. Crim. P. 33.16(c)(4) ("A party's failure to raise any issue that could be raised in the petition for review or cross-petition for review constitutes a waiver of appellate review of that issue.").
Notably, Mathis received presumptive sentences-as provided in the plea agreement-in cause number CR20184652001, despite the trial court's observation that the aggravating circumstances outweighed the mitigating.
¶9 To the extent that Mathis asks us to reweigh the evidence or his credibility, we will not do so. See State v. Fimbres, 222 Ariz. 293, ¶ 4 (App. 2009); see also State v. Fritz, 157 Ariz. 139, 141 (App. 1988) ("The trial court is the sole arbitrator of the credibility of witnesses."). Mathis has failed to show that had his trial counsel offered additional evidence of mitigation, or argued differently against aggravation, the trial court would have imposed a lesser sentence. See Bennett, 213 Ariz. 562, ¶ 25; see also State v. Rosario, 195 Ariz. 264, ¶ 23 (App. 1999) (petitioner carries burden of showing ineffective assistance and showing must be provable reality, not mere speculation). The court therefore did not abuse its discretion in summarily dismissing this claim. See Roseberry, 237 Ariz. 507, ¶ 7.
¶10 Accordingly, we grant review but deny relief.