STATE v. JAGGERS

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NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA, Respondent, v. SEAN EARL JAGGERS, Petitioner. No. 1 CA-CR 20-0472 PRPC FILED 4-27-2021 Petition for Review from the Superior Court in Maricopa County No. CR2014-125831-001 The Honorable Christine E. Mulleneaux, Judge Pro Tempore REVIEW GRANTED; RELIEF DENIED COUNSEL Maricopa County Attorney’s Office, Phoenix By Amanda M. Parker Counsel for Respondent Sean Earl Jaggers, Eloy Petitioner STATE v. JAGGERS Decision of the Court MEMORANDUM DECISION Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Brian Y. Furuya joined. T H U M M A, Judge: ¶1 Sean Earl Jaggers petitions this court for review from the dismissal of his petition for post-conviction relief filed pursuant to Arizona Rule of Criminal Procedure 33.1 (2021).1 For the reasons that follow, the court grants review but denies relief. ¶2 Pursuant to an agreement with the State, Jaggers pled guilty to burglary in the first degree. The court suspended imposition of sentence and placed him on a four-year term of probation. After Jaggers committed another crime while on probation, the court sentenced him to a term of imprisonment for the new offense and placed him on intensive probation for the burglary conviction following his release from prison. In July 2018, Jaggers started the term of intensive probation. ¶3 In April 2019, the State filed a petition to revoke probation, alleging Jaggers failed to comply with various conditions. Jaggers later admitted he violated probation by failing to report to his probation officer. Although the State apparently recommended reinstatement on probation, Jaggers’ probation officer asked the court to sentence Jaggers to prison for the presumptive term. Jaggers asked that he be reinstated on probation “one last time.” He stated that “while he ha[d] missed certain drug tests, he ha[d] not been using;” he “never went without reporting every week” and had in fact reported “the very next day” after his admitted failure to report in the one instance; he “always held a job,” including currently; he had “a good support system” and he had only “recently . . . mess[ed] up.” ¶4 The court revoked probation and sentenced Jaggers to the presumptive term of five years’ imprisonment. Referring to the probation violation report, the court reasoned that Jaggers was “not drug testing as directed” and was “continuing to consume alcoholic beverages, failing to Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated. 1 2 STATE v. JAGGERS Decision of the Court abide by the directions of Probation, and failing to comply” with intensive probation requirements. ¶5 Jaggers filed a notice of post-conviction relief, and the superior court appointed counsel to represent him. After Jaggers’ attorney informed the court she could find no colorable claim to pursue, Jaggers filed a pro se petition for post-conviction relief. Jaggers argued his attorney had provided constitutionally ineffective assistance of counsel by meeting with Jaggers only briefly before the disposition hearing and by failing to present mitigating evidence. After the State responded by disputing Jaggers was entitled to relief, Jaggers filed a reply in which he faulted his attorney for not informing him he could request a postponement of the disposition hearing to prepare mitigation. The court dismissed Jaggers’ petition, noting that much of the purportedly mitigating evidence mentioned by Jaggers was in fact presented to and considered by the court at the disposition. ¶6 In seeking review by this court, Jaggers argues the superior court should have held an evidentiary hearing regarding his counsel’s failure to spend adequate time with him before the disposition hearing. Jaggers also claims an evidentiary hearing was necessary to present evidence his counsel had failed to advise him he could seek a postponement of the hearing, in which event, defense counsel would have been able to obtain and present mitigating evidence including that Jaggers was attending substance abuse counseling, held a job, and was taking mental health medications. The summary dismissal of Jaggers’ petition for postconviction relief is reviewed for an abuse of discretion. State v. Kolmann, 239 Ariz. 157, 160 ¶ 8 (2016). ¶7 To establish a colorable ineffective assistance claim, a petitioner “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, 567 ¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim.” Id. ¶8 Once Jaggers admitted to violating probation, the court had broad discretion over whether to revoke probation and, if it did, what sentence to impose. See Ariz. R. Crim. P. 27.8(c)(2); State v. Stotts, 144 Ariz. 72, 87 (1985). The law generally provides that a first-time felony offender be 3 STATE v. JAGGERS Decision of the Court sentenced to the presumptive prison term. A.R.S. § 13-702(A).2 Even if Jaggers’ counsel erred by not conducting a more thorough investigation of mitigating facts or by not informing Jaggers he could seek a continuance of the disposition hearing, Jaggers does not establish a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” -- in other words, he fails to show prejudice. Bennett, 213 Ariz. at 568 ¶ 25 (quoting Strickland, 466 U.S. at 694). Thus, the court did not abuse its discretion by denying relief. ¶9 As the superior court observed, the bulk of Jaggers’ proposed mitigating evidence was presented at the disposition hearing. Even though Jaggers’ probation record showed partial compliance with certain conditions and arguably recent improvement in some areas, the record also showed persistent noncompliance and regression in other areas. On the record presented, Jaggers fails to show that more time with defense counsel, a postponement of the disposition hearing or further emphasis on his compliance with some of the probation requirements was reasonably likely to have resulted in a reinstatement of probation or a mitigated prison sentence. ¶10 For these reasons, the court grants review but denies relief. AMY M. WOOD • Clerk of the Court FILED: AA Even though Jaggers had a criminal history, the State did not allege any prior historical felony convictions and the plea agreement treated him as a first-time offender. 2 4

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