STATE v. LICON

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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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CHRISTOPHER REY LICON, Petitioner. No. 1 CA-CR 23-0210 PRPC FILED 04-29-2025 Petition for Review from the Superior Court in Maricopa County No. CR2011-100207-001 The Honorable Michael W. Kemp, Judge REVIEW GRANTED; RELIEF DENIED COUNSEL Maricopa County Attorney’s Office, Phoenix By Faith Cheree Klepper Counsel for Respondent DM Cantor, Phoenix By Leah Dodd Counsel for Petitioner STATE v. LICON Decision of the Court MEMORANDUM DECISION Presiding Judge Anni Hill Foster delivered the decision of the Court, in which Judge Michael J. Brown and Judge Paul J. McMurdie joined. F O S T E R, Judge: ¶1 Petitioner Christopher Rey Licon seeks review of the superior court’s orders denying his first petition for post-conviction relief (“PCR”) and denying his motion to amend his petition. For the following reasons, this Court grants review but denies relief. FACTS AND PROCEDURAL HISTORY ¶2 In 2011, Licon was indicted on six counts: Two counts of firstdegree murder (Counts 1 and 4), one count of burglary in the first degree (Count 2), one count of kidnapping (Count 3), one count of burglary in the second degree (Count 5) and one count of tampering with evidence (Count 6). At trial, Licon’s counsel pursued a guilty except insane (“GEI”) defense. See A.R.S. § 13-502(A). The jury acquitted Licon as to Count 2, found him guilty of the lesser-included offense of second-degree murder as to Count 1 and found him guilty as to the remaining counts. The court sentenced Licon to a presumptive sentence of 33 years for Counts 1 and 3, with 1808 days of presentence incarceration credit, followed by natural life for Count 4 and 3.5 years with 19 days of credit for Counts 5 and 6. Licon appealed his convictions and sentences, which this Court affirmed. State v. Licon, 1 CA-CR 16-0018, 2018 WL 1124237, at *5, ¶ 20 (Ariz. App. Mar. 1, 2018) (mem. decision). ¶3 In September 2018, Licon timely filed his notice for PCR, and the court appointed him counsel. In October 2022, after numerous extensions, counsel filed the petition for PCR, arguing ineffective assistance of counsel (“IAC”) based on Licon’s trial counsel (1) proceeding with the GEI defense without investigating the State’s timeline of events and (2) failing to call or cross-examine key witnesses. After full briefing, the court dismissed the petition, finding Licon admitted the GEI defense was factually supported, key witnesses refused to sign affidavits and the evidence Licon relied on for the timeline surrounding the crimes was “very speculative and imprecise” by providing approximate locations and times. 2 STATE v. LICON Decision of the Court ¶4 Licon moved the court twice to extend the time to file his petition for review due to the voluminous record, but the superior court denied the extension. Licon still petitioned this Court for review, but it dismissed his petition as untimely. Licon petitioned the Supreme Court for review, which vacated this Court’s order and remanded the case to this Court, stating the filing deadline was merely procedural instead of jurisdictional and the superior court erred by refusing to extend the deadline in this case. The Supreme Court allowed Licon to file an amended petition for review. While this Court awaited Licon’s amended petition for review, he moved the superior court to amend his PCR petition, which the court denied. Licon then filed his amended petition for review, which this Court now considers. ¶5 This Court has jurisdiction pursuant to A.R.S. § 13-4239(C). DISCUSSION ¶6 Licon (1) seeks relief based on his ineffective assistance of counsel (“IAC”) claim and (2) argues the court erred by denying his motion to amend his PCR petition. I. Dismissing the Petition. ¶7 Licon argues his trial counsel performed ineffectively by failing to (1) “investigate the factual basis of the State’s case” before proceeding with the GEI defense or (2) “investigate and challenge” the reliability of the State’s witnesses. This Court reviews superior court rulings on petitions for PCR for an abuse of discretion. See State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). Petitioners bear the burden to show the superior court abused its discretion in denying the petition. State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011). ¶8 Defendants may seek PCR on the grounds that their convictions or sentences were obtained “in violation of the United States or Arizona constitutions.” Ariz. R. Crim. P. 32.1(a). “Defendants have a constitutional right to effective assistance of counsel.” State v. Anderson, 257 Ariz. 226, 230, ¶ 14 (2024) (cleaned up); accord U.S. Const. amend. VI; Ariz. Const. art. 2, § 24. But if the defendant’s claims do not raise a material factual or legal question, “the court must summarily dismiss the petition.” Ariz. R. Crim. P. 32.11(a). In other words, the defendant must “present[] a colorable claim—one that, if the allegations are true, might have changed the outcome” to receive an evidentiary hearing. Naranjo v. Sukenic, 545 Ariz. 467, 470, ¶ 8 (2023) (cleaned up); accord Ariz. R. Crim. P. 32.11(b) (“If the 3 STATE v. LICON Decision of the Court court does not summarily dismiss the petition, it must set a status conference or a hearing within 30 days.”). ¶9 “To state a colorable claim of ineffective assistance of counsel, a defendant 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)). Arizona uses the two-prong test from Strickland, which looks at “(1) counsel’s deficient performance under all the circumstances and (2) the reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Anderson, 257 Ariz. at 233, ¶ 27 (citation omitted). ¶10 Under the first prong, courts look to “the ‘practice[s] and expectations of the legal community.’” Id. at ¶ 29 (citation omitted). But courts presume a counsel’s conduct was reasonable. State v. Schurz, 176 Ariz. 46, 58 (1993). Mere disagreement with counsel’s trial tactics will not support an IAC claim. State v. Smith, 244 Ariz. 482, 484, ¶ 9 (App. 2018) (cleaned up) (quoting State v. Meeker, 143 Ariz. 256, 260 (1984)). Instead, petitioners must show their counsel’s decisions were not tactical “but were instead the result of ‘ineptitude, inexperience or lack of preparation.’” State v. Denz, 232 Ariz. 441, 444, ¶ 7 (App. 2013) (quoting State v. Goswick, 142 Ariz. 582, 586 (1984)). “Strategic decisions are conscious, reasonably informed decisions made by an attorney with an eye to benefitting his client.” State v. Varela, 245 Ariz. 91, 95, ¶ 9 (App. 2018) (cleaned up). A strategic decision is not reasonable when the counsel fails to consider his options and makes a reasonable choice between opposing strategies. Id. ¶11 Here, Licon’s petition for PCR does not raise a material issue that his trial counsel’s performance was deficient. Licon admits “there was no question that [he] suffered from mental illness,” which reflects a reasonable basis for the GEI defense. See A.R.S. § 13-502(A) (“A person may be found guilty except insane if at the time of the commission of the criminal act the person was afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong.”). His trial counsel considered and noticed various potential defenses before committing to the GEI defense. The PCR investigator spoke with Licon’s trial counsel and reported in his affidavit that the trial counsel “felt that the timeline wasn’t the best defense, but he chose a different path.” At least 45 witnesses were interviewed while preparing for trial. Even assuming Licon’s allegations are true, they do not show his trial counsel failed to investigate alternative defenses; acted through ineptitude, inexperience or 4 STATE v. LICON Decision of the Court lack of preparation; or chose an unreasonable defense. Licon has failed to show his trial counsel performed deficiently. ¶12 Because Licon failed to satisfy the first prong, this Court need not address the second prong. See State v. Pandeli, 242 Ariz. 175, 181, ¶ 6 (2017). Licon failed to present a colorable claim, so the court did not abuse its discretion by denying Licon’s petition without an evidentiary hearing. II. Denying the Amendment. ¶13 Licon also argues the court erred by denying his motion to amend his petition. “After the defendant files a petition for post-conviction relief, the court may permit amendments to the petition only for good cause.” Ariz. R. Crim. P. 32.9(d). Courts reject interpretations of PCR rules that would allow “a never-ending tunnel” of litigation. Anderson, 257 Ariz. at 231–32, ¶ 21 (cleaned up). Thus, “Rule [32.9(d)] adopts a liberal policy toward amendments of post-conviction pleadings at all stages prior to the entry of judgment.” State v. Rogers, 113 Ariz. 6, 8 (1976) (emphasis added); accord Canion v. Cole, 210 Ariz. 598, 601, ¶ 16 (2005). ¶14 Here, the superior court entered its judgment by summarily dismissing Licon’s petition. The minute entry predated Licon’s motion to amend by over a year, so the court’s liberal policy toward amendments no longer applied. Therefore, Licon needed to show good cause to amend. Ariz. R. Crim. P. 32.9(d). But even then, it is within the court’s discretion to permit amendments. ¶15 The use of the term “may” instead of “must,” as used in other subsections of Rule 32.9, shows that “may” grants the court permissive instead of mandatory guidelines. See Sempre Ltd. P’ship v. Maricopa County, 225 Ariz. 106, 109, ¶¶ 10–11 (App. 2010) (“The legislature in [the statute at issue] used ‘shall’ twice and ‘must’ once, evidencing mandatory intent. [This Court] may therefore infer that the legislature intended ‘may’ in its usual, permissive form.”); compare Ariz. R. Crim. P. 32.9(d) (using “may”) with Ariz. R. Crim. P. 32.9(a)(2) (using “must”) and Ariz. R. Crim. P. 32.9(a)(1) (using “must” and “may”). ¶16 Here, Licon moved to amend his petition 21 months after he filed his original petition and 15 months after the court’s entry of judgment that dismissed his petition. The court did not abuse its discretion by denying Licon’s motion to amend. CONCLUSION 5 STATE v. LICON Decision of the Court ¶17 relief. For the reasons above, this Court grants review but denies MATTHEW J. MARTIN • Clerk of the Court FILED: JR 6

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