STATE OF ARIZONA v. DONNIE RAY FRANKS
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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 FILED BY CLERK SEP 14 2012 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. DONNIE RAY FRANKS, Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2012-0179-PR DEPARTMENT B MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20100760001 Honorable Richard S. Fields, Judge REVIEW GRANTED; RELIEF DENIED Donnie R. Franks Tucson In Propria Persona E S P I N O S A, Judge. ¶1 After a jury trial, petitioner Donnie Franks was convicted of second-degree burglary and theft by control. The trial court sentenced him to enhanced, presumptive, concurrent prison terms of 11.25 years for each offense. We affirmed his convictions and sentences on appeal. State v. Franks, No. 2 CA-CR 2010-0384 (memorandum decision filed Oct. 21, 2011). In his pro se petition for review, Franks challenges the court s dismissal of his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P., in which appointed counsel alleged trial counsel had been ineffective. Franks contends that, at the very least, he was entitled to an evidentiary hearing. Absent a clear 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). We find no such abuse here. ¶2 In order to state a colorable claim of ineffective assistance of counsel, a defendant must establish counsel s performance fell below an objectively reasonable professional standard and the deficient performance was prejudicial to the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Nash, 143 Ariz. 392, 397-98, 694 P.2d 222, 227-28 (1985). [D]isagreements as to trial strategy or errors in trial tactics will not support an effectiveness claim so long as the challenged conduct could have some reasoned basis. State v. Meeker, 143 Ariz. 256, 262, 693 P.2d 911, 917 (1984). A reviewing court should give great deference to tactical decisions made by counsel and should refrain from evaluating counsel s performance in the harsh light of hindsight. See Nash, 143 Ariz. at 398, 694 P.2d at 228. Like the ultimate decision whether to grant or deny post-conviction relief, whether a claim is colorable and warrants an evidentiary hearing is, to some extent, a discretionary decision for the trial court. State v. D Ambrosio, 156 Ariz. 71, 73, 750 P.2d 14, 16 (1988). ¶3 Franks argues on review, as he did in his petition below, that trial counsel was ineffective because he failed to contact or interview three potential defense witnesses, depriving him of a mere-presence defense. He contends he raised a colorable claim for relief and the trial court abused its discretion by denying relief without an evidentiary hearing. For the reasons stated by the court, however, it is at least equally plausible trial counsel had chosen the defense strategy based on his evaluation of the case 2 and had recognized that the chosen defense was appropriate in light of the very strong evidence against Franks. Franks, No. 2 CA-CR 2010-0384, ¶ 6. ¶4 Based on the record before us, we cannot say the trial court abused its discretion in denying Franks s petition for post-conviction relief. The court did so in a detailed and thorough minute entry order that clearly identified Franks s arguments and correctly ruled on them in a manner that will allow any court to understand their resolution in the future. We therefore approve and adopt the court s ruling and see no need to restate it here. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). ¶5 Because the trial court did not abuse its discretion by denying post- conviction relief, we grant the petition for review but relief is denied. /s/ Philip G. Espinosa PHILIP G. ESPINOSA, Judge CONCURRING: /s/ Garye L. Vásquez GARYE L. Và SQUEZ, Presiding Judge /s/ Virginia C. Kelly VIRGINIA C. KELLY, Judge 3
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