Opinion
No. 2 CA-CR 2017-0413-PR
03-29-2018
THE STATE OF ARIZONA, Respondent, v. TONY LEE MYERS, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Robert E. Prather, Deputy County Attorney, Phoenix Counsel for Respondent Tony Lee Myers, Tucson In Propria Persona
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NOT FOR PUBLICATION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 Maricopa County
No. CR2014156515001DT
The Honorable Erin O'Brien Otis, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL William G. Montgomery, Maricopa County Attorney
By Robert E. Prather, Deputy County Attorney, Phoenix
Counsel for Respondent Tony Lee Myers, Tucson
In Propria Persona
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 Tony Myers seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Myers has not shown such abuse here.
¶2 After a jury trial, Myers was convicted of third-degree burglary and possession of burglary tools. Myers had encountered police while carrying a deep-cycle marine battery with cut wires; the victim identified the battery as recently having been taken from a compartment in his bus. The trial court sentenced Meyers to concurrent prison terms, the longer of which is six years. We affirmed his convictions and sentences on appeal. State v. Myers, No. 1 CA-CR 15-0455 (Ariz. App. Sep. 1, 2016) (mem. decision).
¶3 Myers sought post-conviction relief, opting to proceed pro se. He raised what he characterized as nineteen separate claims, most asserting that trial and appellate counsel had been ineffective. The trial court summarily denied relief and denied Myers's subsequent motion for rehearing. This petition for review followed.
¶4 On review, Myers reurges several of his ineffective-assistance claims and argues he is entitled to an evidentiary hearing. Myers is entitled to a hearing only if he has presented a colorable claim for relief, that is, "he has alleged facts which, if true, would probably have changed the verdict or sentence." State v. Amaral, 239 Ariz. 217, ¶¶ 10-11 (2016). "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); accord State v. Kolmann, 239 Ariz. 157, ¶ 9 (2016); see also Strickland v. Washington, 466 U.S. 668, 687-88 (1984). We address each of Myers's claims in turn.
¶5 Myers first reasserts that trial counsel failed to adequately investigate his case. He lists numerous steps he believes counsel should have taken but, for the bulk of those steps, he can offer only speculation they would have yielded useful evidence. For example, although he complains that counsel failed to follow up on his assertion that he had permission to take the battery from a construction site, he has provided no supporting witness affidavits. See State v. Borbon, 146 Ariz. 392, 399 (1985) (claim based on testimony by potential witness not colorable absent affidavit). And, even if we take as true his claim the wire cutters found in his possession could not have cut the battery wires, he has not established that evidence probably would have changed the result. See Amaral, 239 Ariz. 217, ¶¶ 10-11. Myers was found in possession of a recently stolen battery with no credible explanation for how he had obtained it. Whether he also had adequate tools to complete the particular theft is unlikely to have swayed the jury.
Myers told a police officer "that someone gave [the battery] to him from a car located nearby in return for work he had done." Myers, No. 1 CA-CR 15-0455, ¶ 3. The officer testified he did not find any abandoned vehicles nearby that could have transported the battery. Id. n.2.
¶6 We also reject Myers's claim that counsel should have sought to admit into evidence the prior convictions of a person who had called police to report a person matching Myers's description had been near his vehicle, or sought to preclude the officer's statements about that call pursuant to Rule 404(b), Ariz. R. Evid., or on confrontation grounds. Myers has not explained on review how doing so could have altered the result of his trial. See Amaral, 239 Ariz. 217, ¶¶ 10-11. The testimony about the call, at most, explained why officers came into contact with Myers. The caller did not identify Meyers and, indeed, stated nothing was missing from his car.
¶7 Myers also asserts counsel should have raised what he claims was his illegal arrest. But, on review, Myers has not meaningfully developed an argument, with references to the record, that his detention constituted an illegal arrest or was otherwise unreasonable. Thus, we decline to address this argument further. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (insufficient argument waives claim on review).
¶8 In his final claim of ineffective assistance, Myers asserts his trial counsel failed to adequately advise him about the sentence he could face upon conviction, causing him to reject a plea offer from the state. An attorney's representation may be found constitutionally deficient if he fails to timely communicate a formal plea offer, Missouri v. Frye, 566 U.S. 134, 147 (2012); provides erroneous plea advice; or, fails to provide "information necessary to allow [his client] to make an informed decision whether to accept the plea," State v. Donald, 198 Ariz. 406, ¶ 16 (App. 2000). To establish prejudice in this context, a defendant must show a reasonable probability that, absent his attorney's deficient conduct, he would not have accepted the plea offer. Id. ¶ 20.
¶9 Myers asserts that, had counsel advised him he "faced a minimum 6 year sentence" if convicted at trial, he would have accepted a plea offer from the state which called for a maximum three-year prison term. But Myers's claim is contradicted by his letter to counsel, in which he acknowledges he could receive a ten-year prison term if convicted. Thus, Myers clearly understood the sentence he would likely face would far exceed three years; his claim to the contrary is patently incredible.
¶10 Myers also briefly summarizes his claims of ineffective assistance of appellate counsel. The only claim he meaningfully develops on review, however, is his assertion that appellate counsel should have argued the evidence was insufficient to support his conviction for burglary. Specifically, he seems to assert there was no evidence he had "entered" the bus to steal the battery. But, the battery in Myers's possession had recently been taken from a compartment on the exterior of the bus. The jury thus could conclude Myers had entered that compartment to take the battery, thus committing third-degree burglary. See A.R.S. §§ 13-1501(3) (entry includes "intrusion of any part of any instrument or any part of a person's body inside the external boundaries of a structure"), (12) (vehicles are structures), 13-1506(A)(1) (person commits third-degree burglary by "entering . . . nonresidential structure . . . with the intent to commit any theft"); see also State v. Delgado, 232 Ariz. 182, ¶ 2 (App. 2013) (evidence viewed in light most favorable to upholding conviction). The remainder of Myers's argument is simply that the jury should have rejected the owner's identification of the battery as the one taken from his bus. But we must defer to the jury's decisions about the credibility of witnesses. See State v. Ortega, 220 Ariz. 320, ¶ 34 (App. 2008). Because the evidence was sufficient to support his convictions, Myers has not made a colorable claim that appellate counsel fell below prevailing professional standards by declining to raise this issue on appeal or that he was prejudiced thereby. See Borbon, 146 Ariz. at 399 ("We cannot fault defense counsel for failing to make an essentially futile request."); see also Bennett, 213 Ariz. 562, ¶ 21.
We decline to address his remaining claims of ineffective assistance of appellate counsel because he has not adequately developed them on review. See Stefanovich, 232 Ariz. 154, ¶ 16. --------
¶11 We grant review but deny relief.