NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO
THE STATE OF ARIZONA,
Respondent,
v.
ROY BERNARD ENGEBRETSON,
Petitioner.
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FILED BY CLERK
SEP 16 2010
COURT OF APPEALS
DIVISION TWO
2 CA-CR 2010-0155-PR
DEPARTMENT B
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20063110
Honorable Richard D. Nichols, Judge
REVIEW GRANTED; RELIEF DENIED
Barbara LaWall, Pima County Attorney
By Jacob R. Lines
Roy Bernard Engebretson
Tucson
Attorneys for Respondent
Hinton, OK
In Propria Persona
E C K E R S T R O M, Judge.
¶1
Petitioner Roy Engebretson was convicted after a jury trial held in his absence of
possession of a dangerous drug for sale and possession of drug paraphernalia. He appealed and
this court affirmed the convictions and the sentences imposed. State v. Engebretson, No. 2 CACR 2007-0280 (memorandum decision filed Aug. 12, 2008). He then sought post-conviction
relief pursuant to Rule 32, Ariz. R. Crim. P., based on the allegedly ineffective assistance of trial
counsel. The trial court denied relief without a hearing and denied Engebretson’s motion for
reconsideration. This petition for review followed. Absent an abuse of discretion, we will not
disturb the court’s ruling. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007).
¶2
On appeal, counsel had filed a brief in compliance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), avowing he had found
no meritorious or non-frivolous issues to raise on appeal. Engebretson then filed a pro se
supplemental brief in which he raised a variety of issues, including alleged misconduct by an
undercover police officer and the allegedly erroneous admission of methamphetamine into
evidence. In this post-conviction proceeding, appointed counsel filed a notice avowing he had
found “no tenable issue for review” and requested that Engebretson be permitted to file a pro se
petition, which the trial court granted. In his petition, Engebretson asserted that trial counsel had
been “ineffective when he failed to investigate claims of constitution[al] violations and
misconduct by police officer or pursue pretrial litigation.” The court construed Engebretson’s
petition as also alleging counsel had been ineffective in failing to object to the introduction of
drug evidence at trial, failing to adequately represent him in connection with a plea offer the state
had made, and failing to inform him of the trial date. In denying post-conviction relief, the court
found the claims of ineffective assistance of counsel based on police misconduct and the
introduction of drug evidence were precluded pursuant to Rule 32.2(a)(2) because those issues
had been adjudicated on appeal.
The court rejected the remaining claims of ineffective
assistance of counsel on their merits.
¶3
On review, Engebretson seems to focus primarily on counsel’s performance in
connection with the state’s plea offer, claiming trial counsel did not adequately review the offer
and properly advise him so that he could make an informed decision whether to accept the offer
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or reject it. Although the court acknowledged that Engebretson had raised this claim, his petition
apparently referred to counsel’s performance in connection with the plea only in the statement of
facts, not in the portion of the petition in which he identified and argued the claim he was
actually raising. He did raise and develop this claim in his reply, but an issue raised for the first
time in a Rule 32 reply is not properly raised; it is waived. See State v. Lopez, 223 Ariz. 238, ¶¶
6-7, 221 P.3d 1052, 1054 (App. 2009).
¶4
In any event, even assuming Engebretson had properly raised this claim in the
petition, he has not established the trial court abused its discretion by summarily denying relief
on this ground. The court found “from the record at the pre-trial conference of February 20,
2007 that the defendant was aware of the State’s plea offer and knowingly rejected it.” The
minute entry from that date reflects that the court had questioned Engebretson about the terms
and conditions of a plea offer the state had made and, according to his trial counsel, Engebretson
had rejected. The court found Engebretson “has been adequately advised of the plea offer and
knowingly, intelligently and voluntarily rejects the plea offer.” Engebretson has not persuaded
us he raised a colorable claim for relief on this ground.
¶5
To the extent his petition for review could be construed as challenging the trial
court’s denial of relief on his claim of ineffective assistance of counsel in connection with police
misconduct and the admission of drug evidence, Engebretson has not persuaded us that summary
denial of relief was improper. As we previously stated, the court found these claims precluded.
First, although Engebretson mentioned counsel’s performance in connection with the admission
of drug evidence in the statement of facts, he did not identify this as a basis for his claim in the
argument section of the petition. But even assuming, as the trial court did, that this, too, was a
properly raised basis for his claim of ineffective assistance, and assuming, too, his petition for
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review could be construed as raising both grounds on review, Engebretson did not raise colorable
claims.
¶6
The claim of ineffective assistance of counsel is independent from the claim upon
which it is based. And claims of ineffective assistance of counsel, unlike the underlying claim,
can only be raised pursuant to Rule 32, not on direct appeal. See State v. Spreitz, 202 Ariz. 1, ¶
9, 39 P.3d 525, 527 (2002). Consequently, the trial court erred when it found the claims of
ineffective assistance of counsel that were based on police misconduct and erroneous admission
of drug evidence precluded. Nevertheless, the court did not abuse its discretion in denying relief
because, as we found on appeal, these issues were without merit; therefore, the related claims of
ineffective assistance of counsel necessarily fail. Engebretson was not prejudiced by counsel’s
performance, even assuming, without deciding, that performance was deficient. See Strickland
v. Washington, 466 U.S. 668, 687 (1984) (to establish claim of ineffective assistance of counsel
warranting relief, defendant must show counsel’s performance was deficient and prejudicial).
¶7
We grant the petition for review but deny relief.
Peter J. Eckerstrom
/s/
PETER J. ECKERSTROM, Judge
CONCURRING:
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
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