Opinion
No. 2 CA-CR 2015-0303-PR
12-30-2015
THE STATE OF ARIZONA, Respondent, v. ZACHARY M. WHITE, Petitioner.
COUNSEL M. Lando Voyles, Pinal County Attorney By Renee J. Waters, Deputy County Attorney, Florence Counsel for Respondent Zachary M. White, Douglas 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NOT FOR PUBLICATION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. 31.24. Petition for Review from the Superior Court in Pinal County
No. S1100CR200701923
The Honorable Craig A. Raymond, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL M. Lando Voyles, Pinal County Attorney
By Renee J. Waters, Deputy County Attorney, Florence
Counsel for Respondent Zachary M. White, Douglas
In Propria Persona
MEMORANDUM DECISION
Judge Staring authored the decision of the Court, in which Presiding Judge Howard and Judge Espinosa concurred. STARING, Judge:
¶1 Zachary White 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 that order unless the court clearly abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). White has not met his burden of demonstrating such abuse here.
¶2 After a jury trial, White was convicted of second-degree murder and weapons misconduct. On appeal, we vacated the second-degree murder conviction, affirmed the weapons misconduct conviction, and remanded the case for further proceedings. State v. White, No. 2 CA-CR 2009-0173, ¶ 16 (memorandum decision filed Apr. 19, 2010). Following a second trial, a jury found White guilty of the lesser-included offense of manslaughter, and the trial court imposed a maximum, twenty-one-year prison sentence. We affirmed the conviction and sentence. State v. White, No. 2 CA-CR 2011-0333, ¶22 (memorandum decision filed Jan. 7, 2013).
¶3 White then sought post-conviction relief. His appointed counsel subsequently filed a notice stating she had reviewed the record but had found no claims to raise in a Rule 32 proceeding. While that matter was pending, the court granted the state's motion to amend the sentencing minute entry to eliminate a term of community supervision as to his manslaughter sentence to reflect a flat-time sentence. We affirmed that ruling on appeal. State v. White, No. 2 CA-CR 2014-0135, ¶ 12 (memorandum decision filed June 5, 2015).
¶4 In January 2015, White filed a pro se petition for post-conviction relief arguing he had not been given sufficient presentence incarceration credit for the sentence imposed for manslaughter and that his flat-time sentence was inappropriate because the state did not allege before trial that he had been on supervised release at the time of his offense. He further asserted trial counsel had been ineffective for failing to request a jury instruction on voluntary intoxication and the trial court had erred in failing to give the instruction sua sponte. Finally, he asserted appellate counsel and Rule 32 counsel had been ineffective in failing to raise the various issues. Characterizing White's filing as a "second of right petition," the trial court summarily denied relief. This petition for review followed.
¶5 We first observe that, based on the record before us, this is not a successive post-conviction proceeding—there is no order in the record dismissing White's previous Rule 32 proceeding. The trial court extended the time for White to file his petition to January 19, 2015, and his petition was received by the court on January 22. Cf. State v. Rosario, 195 Ariz. 264, ¶¶ 10-11, 987 P.2d 226, 228 (App. 1999) (post-conviction petition effectively filed when given to prison authorities for mailing). The court did not discuss the timeliness of the petition, instead determining only that White had not presented a "colorable claim of relief under Rule 32." Accordingly, we treat White's petition as part of his first post-conviction proceeding.
¶6 On review, White essentially repeats his claims. We agree with the state that White's claims other than his claims of ineffective assistance of counsel are precluded because they were or could have been raised on appeal. Ariz. R. Crim. P. 32.2(a)(2), (3). White's various claims of ineffective assistance also warrant summary dismissal.
¶7 To present a colorable claim of ineffective assistance of counsel, White was required to show both 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, 687-88 (1984) ("The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.").
¶8 White first claims that appellate counsel was ineffective for failing to argue the trial court was not permitted to rely on his release status in determining his sentence because the state did not make that allegation before trial. But that argument was raised and rejected on appeal and thus cannot support a claim of ineffective assistance.
¶9 White next claims that trial and appellate counsel were ineffective for failing to argue he was entitled to a jury instruction that the jury could consider his voluntary intoxication in evaluating his mental state. But voluntary intoxication "is not a defense for any criminal act or requisite state of mind." A.R.S. § 13-503; State v. Payne, 233 Ariz. 484, ¶ 149, 314 P.2d 1239, 1272 (2013) (jury prohibited "from using voluntary intoxication to negate intent"). Thus, no such instruction was permitted and counsel had no basis to request it.
The authority White relies on discusses a previous version of § 13-503, no longer in effect, which provided that "when the actual existence of the culpable mental state of 'intentionally' or 'with the intent to' is a necessary element to constitute any particular species or degree of offense, the jury may take into consideration the fact that the accused was intoxicated at the time in determining the culpable mental state with which he committed the act." 1980 Ariz. Sess. Laws, ch. 229, § 6. --------
¶10 White also contends appellate counsel should have argued he was entitled to additional presentence incarceration credit. This issue was addressed at White's sentencing, and he has identified no legal or factual reason he is entitled to additional credit. We do not consider claims unsupported by relevant authority and meaningful argument. State v. Stefanovich, 232 Ariz. 154, ¶ 16, 302 P.3d 679, 683 (App. 2013).
¶11 We also do not address White's claim that his Rule 32 counsel was ineffective. Because this is White's first Rule 32 proceeding, that claim is premature and, in any event, he is not entitled to the effective assistance of Rule 32 counsel. Osterkamp v. Browning, 226 Ariz. 485, ¶ 18, 250 P.3d 551, 556 (App. 2011); see also State v. Escareno-Meraz, 232 Ariz. 586, ¶ 4, 307 P.3d 1013, 1014 (App. 2013) (non-pleading defendants "have no constitutional right to counsel in post-conviction proceedings" and claim of ineffective assistance of Rule 32 counsel is not cognizable for such defendants).
¶12 Although we grant review, we deny relief.