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FILED BY CLERK
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
MAY -3 2013
COURT OF APPEALS
IN THE COURT OF APPEALS
STATE OF ARIZONA
THE STATE OF ARIZONA,
CHRISTOPHER PAUL PETERS,
2 CA-CR 2013-0087-PR
Not for Publication
Rule 111, Rules of
the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF MARICOPA COUNTY
Cause No. CR2009007446004DT
Honorable Julie P. Newell, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
William G. Montgomery, Maricopa County Attorney
By Gerald R. Grant
Christopher Paul Peters
V Á S Q U E Z, Presiding Judge.
Attorneys for Respondent
In Propria Persona
Petitioner Christopher Peters seeks review of the trial court’s summary
denial of his of-right petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R.
Crim. P. We grant review but deny relief.
In June 2009, police officers conducting surveillance on a residence saw
Peters leave the house and get into his vehicle while carrying a bag later determined to
contain five pounds of marijuana. A grand jury issued a true bill and arrest warrants for
Peters and six other defendants. Less than four months after his arraignment, Peters
entered a plea agreement and was convicted of possession of marijuana for sale, a nondangerous, repetitive offense. He was sentenced to an enhanced, slightly aggravated,
seven-year prison term.
Peters then filed a notice of post-conviction relief. After appointed counsel
notified the court that she had reviewed the record and found no claims to raise in postconviction relief proceedings, Peters filed a pro se petition in which he alleged “the state
presented false information to the grand jury” and, as a result, the indictment and warrant
for his arrest were “wrongly issued.”
He also alleged his trial attorney had been
ineffective in failing to compare police reports and the grand jury transcript with a record
of Peters’s pre-arrest interview by police. According to Peters, this comparison would
have revealed that, when testifying before the grand jury, police officers misrepresented
statements he had made to them and their accounts of the traffic stop that led to his arrest
were inconsistent. Peters also asserted his attorney “chose to do nothing” when, on the
day of sentencing, another defendant told Peters he had been “set-up” by someone who
owed him money.
The trial court found Peters had failed to state a colorable claim and denied
relief. The court first observed Peters did not support his allegations of ineffective
assistance of counsel “with affidavits, records [or] any other evidence,” but had “simply
alluded to a possibility of ‘false information’ being presented to the grand jury” by
suggesting “his interview with the police was possibly misrepresented in the police
reports and possibly to the grand jury.” See Ariz. R. Crim. P. 32.5 (“Affidavits, records,
or other evidence currently available to the defendant supporting the allegations of the
petition shall be attached to it. Legal and record citations and memoranda of points and
authorities are required.”). The court noted “no grand jury transcript was attached and no
specific evidence was presented concerning any malfeasance by his attorney.”
addition, the court found Peters had “waived his ability to attack the grand jury
proceedings and to challenge the seizure of evidence when he pleaded guilty.” This
petition for review followed.
On review, Peters argues he had “notified the [trial] court” that the state and
his trial attorney had evidence that might support his claim, including police reports, the
grand jury transcript, and a record of his police interview, and he implies the court abused
its discretion in denying his claim based on his failure to present evidence. He asserts his
former attorney “has refused to release” those documents and materials and asks this
court to “order and obtain [them].”
We review a trial court’s summary denial of post-conviction relief for an
abuse of discretion. State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006). We
find none here. Although Peters maintains he “made the trial court aware” that he did not
have the grand jury transcript or other documents that might have supported his claim, he
never sought an extension of time to obtain those documents or the court’s assistance in
doing so. This is a court of review; we do not grant relief that was not requested below.
See Ariz. R. Crim. P. 32.9(c)(1)(ii) (limiting review to “issues which were decided by the
trial court”); cf. State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980)
(declining to address issue not presented first to trial court).
To the extent Peters sought relief based on alleged errors in grand jury
proceedings or during his arrest, the trial court correctly concluded such claims were
waived. See State v. Moreno, 134 Ariz. 199, 200, 655 P.2d 23, 24 (App. 1982) (pleading
defendant waives right to appeal “all nonjurisdictional defenses, errors and defects
occurring prior to the plea proceedings”), disapproved on other grounds by State ex rel.
Dean v. Dolny, 161 Ariz. 297, 778 P.2d 1193 (1989); see also Tollett v. Henderson, 411
U.S. 258, 267 (1973) (“When a criminal defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is charged, he may not thereafter
raise independent claims relating to the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea.”).
To the extent Peters asserted generally that, had counsel “attempted to do
anything at all on [his] behalf, [he] would have gone to trial, rather than take a plea,” the
trial court did not abuse its discretion in finding Peters failed to state a colorable claim for
relief. “To state a colorable claim of ineffective assistance of counsel,” Peters was
required to “show both that counsel’s performance fell below objectively reasonable
standards and that this deficiency prejudiced [him].” Bennett, 213 Ariz. 562, ¶ 21, 146
P.3d at 68, citing Strickland v. Washington, 466 U.S. 668, 687 (1984).
allegations in Peters’s petition were insufficient to show either constitutionally deficient
performance by counsel or resulting prejudice.
When a defendant has pleaded guilty, a claim of ineffective assistance of
counsel is limited “to attacks on the voluntary and intelligent nature of the guilty plea,
through proof that the advice received from counsel was not ‘within the range of
competence demanded of attorneys in criminal cases.’” Blackledge v. Perry, 417 U.S.
21, 30 (1974), quoting McMann v. Richardson, 397 U.S. 759, 771 (1970). In other
words, to show his attorney’s performance was deficient, Peters was required to
“establish that his attorney’s advice to plead guilty without having made inquiry” into the
grand jury testimony by police officers “rendered that advice outside the ‘range of
competence demanded of attorneys in criminal cases.’” Tollett, 411 U.S. at 268, quoting
McMann, 397 U.S. at 771.
Peters maintains he had specifically asked counsel to conduct such a review
and had provided a list of alleged “discrepancies” in grand jury testimony, which Peters
submitted with his petition for post-conviction relief. But Peters fails to develop any
argument that his attorney performed below prevailing professional norms in failing to
investigate these alleged discrepancies, some of which seemed to pertain to minor details
in the context of other evidence against Peters, before advising Peters to accept the
negotiated plea agreement.1 As the Supreme Court explained in Tollett,
Often the interests of the accused are not advanced by
challenges that would only delay the inevitable date of
prosecution, or by contesting all guilt. A prospect of plea
bargaining, the expectation or hope of a lesser sentence, or
the convincing nature of the evidence against the accused are
considerations that might well suggest the advisability of a
guilty plea without elaborate consideration of whether pleas
in abatement . . . might be factually supported.
Id. (citations omitted). See also Premo v. Moore, ___ U.S. ___, ___, 131 S. Ct. 733, 74546 (2011) (noting pleading defendant bears “a most substantial burden . . . to show
ineffective assistance” due to “uncertainty that results when there is no extended, formal
record and no actual history to show how the charges have played out at trial”).
Similarly, to state a colorable claim of the prejudice required by Strickland,
a defendant must do more than allege that he “would not have pleaded guilty but for
counsel’s deficient performance”; such an allegation “must be accompanied by an
allegation of specific facts which would allow a court to meaningfully assess why
[counsel’s] deficiency was material to the plea decision.” State v. Bowers, 192 Ariz. 419,
¶ 25, 966 P.2d 1023, 1029 (App. 1998). Thus, “a Rule 32 hearing is not required on a
claim of ineffective assistance of counsel when the petition offers only mere
generalizations and unsubstantiated claims.” Id. In his petition below, Peters failed to
For example, with respect to one page reference, Peters noted, “Told police took
place in garage . . . and left in black truck”; apparently challenging testimony on page
twenty-three of the transcript, he wrote, “No mention of drug deal by me—just crumbs[,]
not considerable amount.”
sustain his burden of showing, in the context of the evidence against him, how counsel’s
actions or omissions were material to his decision to plead guilty.
Accordingly, we cannot say the trial court abused its discretion in
summarily denying relief. Although we grant the petition for review, we deny relief.
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge