Opinion
No. 2 CA-CR 2019-0045-PR
06-07-2019
THE STATE OF ARIZONA, Respondent, v. AARON L. SHARPE, Petitioner.
COUNSEL Kent P. Volkmer, Pinal County Attorney By Thomas C. McDermott, Appellate Bureau Chief, Florence Counsel for Respondent Harriette P. Levitt, 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NOT FOR PUBLICATION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 Pinal County
No. S1100CR201202134
The Honorable Joseph R. Georgini, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Kent P. Volkmer, Pinal County Attorney
By Thomas C. McDermott, Appellate Bureau Chief, Florence
Counsel for Respondent Harriette P. Levitt, Tucson
Counsel for Petitioner
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred. ECKERSTROM, Chief Judge:
¶1 Petitioner Aaron Sharpe seeks review of the trial court's order denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007). Sharpe has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Sharpe was convicted of conspiracy, armed robbery, kidnapping, aggravated assault, theft, and weapons misconduct. The trial court imposed concurrent and consecutive prison terms totaling twenty-four years' imprisonment. This court affirmed the convictions and sentences on appeal. State v. Sharpe, No. 2 CA-CR 2016-0002 (Ariz. App. July 21, 2017) (mem. decision).
¶3 Sharpe thereafter sought post-conviction relief, arguing in his petition that he had received ineffective assistance of trial counsel and that the United States Supreme Court's decision in Carpenter v. United States, ___ U.S. ___, 138 S. Ct. 2206 (2018), constituted a significant change in the law entitling him to relief. The trial court summarily denied relief.
¶4 On review, Sharpe repeats his claims and asks this court to grant him a new trial, or alternatively, an evidentiary hearing. "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); see also Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Kolmann, 239 Ariz. 157, ¶ 9 (2016). "To establish deficient performance, a defendant must show that his counsel's assistance was not reasonable under prevailing professional norms, 'considering all the circumstances.'" Kolmann, 239 Ariz. 157, ¶ 9 (quoting Hinton v. Alabama, 571 U.S. 263, 273 (2014)). "To establish prejudice, a defendant must 'show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. (quoting Hinton, 571 U.S. at 275).
¶5 Sharpe's convictions stem from a 2011 armed robbery. His first trial ended in a mistrial because counsel for a codefendant became unavailable due to a medical condition. Shortly thereafter, Sharpe's counsel was suspended from the practice of law for sixty days. Counsel was again suspended in October 2015. The state did not contest below that Sharpe's counsel "had a serious substance problem" or even that the problem "contributed to his absences from court after the verdict" but before the court ultimately removed him from the case in August 2015.
¶6 But "intoxication or alcoholism of counsel, standing alone, does not establish a per se violation of a criminal defendant's right to receive effective assistance of counsel." State v. D'Ambrosio, 156 Ariz. 71, 73 (1988). Rather, to establish such a claim, a defendant must show "that, because of the intoxication or alcoholism, counsel acted or failed to act in a manner which deprived the client of his right to effective assistance of counsel." Id. On review, Sharpe cites primarily his counsel's "inattentive[ness]" to the case, delays in the case, possible intoxication on the first day of trial, and failures to appear for court. In large part, Sharpe fails to assert specific failures by counsel resulting from his problems that prejudiced Sharpe's defense.
We have reviewed the transcript of the first day of trial. Sharpe's counsel asked to sit, citing a "cramp in [his] leg," but he answered questions, and nothing in the record suggests any other problematic behavior. In his petition for post-conviction relief, Sharpe stated that "the bailiff noticed that [counsel] was shaking," but he did not cite any evidence in the record for that proposition.
Sharpe made some specific claims of error in his petition for post-conviction relief, but has failed to urge them on review. We therefore do not address them. See Ariz. R. Crim. P. 32.9(c)(4)(D); State v. Rodriguez, 227 Ariz. 58, n.4 (App. 2010) (declining to address argument not raised in petition for review); see also State v. Bolton, 182 Ariz. 290, 298 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim.").
¶7 Sharpe does contend, however, that he was entitled to relief based on Carpenter, either because it constitutes a significant change in the law that entitles him to relief or because trial counsel was ineffective in failing to move to suppress the evidence against him based on the law underlying that decision. In Carpenter, the Supreme Court considered "whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user's past movements." 138 S. Ct. at 2211. But the cellular records in question in this case were a "tower dump," or the record of all calls going through a nearby tower at a certain time. The Supreme Court in Carpenter specifically stated it was not addressing such records. Id. at 2220 ("Our decision today is a narrow one. We do not express a view on matters not before us," including "'tower dumps' (a download of information on all the devices that connected to a particular cell site during a particular interval)."). Therefore the trial court did not abuse its discretion in denying relief on either basis.
¶8 Petitioner also makes an allegation that his trial counsel may have been intoxicated during portions of his trial. Such allegations should capture any court's attention, and would often compel an evidentiary hearing to further explore that question. But petitioner has developed no concrete allegation of prejudice, in a case where the evidence of his guilt was overwhelming, apart from the Carpenter claim which we have rejected. We therefore grant the petition for review but deny relief.