ineffective assistance claim in Arizona

2015As a result of these alleged failures, Father claims he was prejudiced. ¶33 We will review an ineffective assistance of counsel claim on direct appeal only if “we may clearly determine from the record that the ineffective assistance claim is meritless.” State v. Whalen, 192 Ariz. 103, 110 (App. 1997) (quoting State v. Carver, 160 Ariz. 167, 175 (1989)).

1997Ineffective Assistance of Counsel We do not review an ineffective assistance of counsel claim on direct appeal unless “we may clearly determine from the record that the ineffective assistance claim is meritless.” State v. Carver, 160 Ariz. 167, 175 , 771 P.2d 1382, 1390 (1989); see also Ariz.R.Crim.P. 32, 17 A.R.S.

2025A strategic decision by counsel generally will not support an ineffective assistance claim unless the decision has no “reasoned basis.” State v. Gerlaugh, 144 Ariz. 449, 455 (1985). ¶13 The superior court appropriately denied Ricci’s petition.

2018Therefore, "disagreements about trial strategy will not support an ineffective assistance claim if 'the challenged conduct has some reasoned basis,' even if the tactics counsel adopts are unsuccessful." Id. , quoting State v. Gerlaugh , 144 Ariz. 449 , 455, 698 P.2d 694 (1985). ¶ 9 Despite counsel's duty to adequately investigate possible defenses, "counsel may opt not to pursue a particular investigative path based on his or her reasoned conclusion that it would not yield useful information or is otherwise unnecessary in light of counsel's chosen trial strategy." *271 Id. ¶ 11.

2024Bueno argues “it is apparent from the facts presented at trial here that only an unreasonable investigation into this case or perhaps pure laziness would result in a lawyer not calling [the ballistics expert] to testify.” But Bueno does not point to any such facts. ¶10 And defense counsel’s decision not to call the ballistics expert as a witness, viewed with appropriate deference, see Strickland v. Washington, 466 U.S. 668 , 689–90 (1984), reflects a reasonable tactical choice.

2019To merit an evidentiary hearing on an ineffective assistance claim, “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 State v. Bennett, 213 Ariz. 562, 567, ¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984), superseded by statute on other grounds, Antiterrorism and Effective Death Penalty Act of 1996, Pub.

2009State v. Bejarano, 219 Ariz. 518, ¶ 6 , 200 P.3d 1015, 1017 (App.2008). ¶ 5 We recognize that parallel language in Rules 24.2 and 32.1 appears to permit a defendant to raise an ineffective assistance claim in a post-trial motion to vacate judgment.

2009State v. Bejarano, 219 Ariz. 518, ¶ 6 , 200 P.3d 1015, 1017 (App.2008). ¶ 5 We recognize that parallel language in Rules 24.2 and 32.1 appears to permit a defendant to raise an ineffective assistance claim in a post-trial motion to vacate judgment.

2024“Whether or not to call a witness is a strategic decision” that will not support an ineffective assistance claim unless the defendant can show the decision “was not a tactical one but, rather, revealed ineptitude, inexperience or lack of preparation.” State v. Goswick, 142 Ariz. 582, 586 (1984).

2018Therefore, "disagreements about trial strategy will not support an ineffective assistance claim if 'the challenged conduct has some reasoned basis,' even if the tactics counsel adopts are unsuccessful." Id. , quoting State v. Gerlaugh , 144 Ariz. 449 , 455, 698 P.2d 694 (1985). ¶ 9 Despite counsel's duty to adequately investigate possible defenses, "counsel may opt not to pursue a particular investigative path based on his or her reasoned conclusion that it would not yield useful information or is otherwise unnecessary in light of counsel's chosen trial strategy." *271 Id. ¶ 11.

2019To merit an evidentiary hearing on an ineffective assistance claim, “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), superseded by statute on other grounds, Antiterrorism and Effective Death Penalty Act of 1996, Pub.

2016Strickland, 466 U.S. at 697 ; see also State v. Bennett, 213 Ariz. 562, 567, ¶ 21 (2006). ¶6 In considering the matter of counsel’s performance, courts “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689 ; see also Bennett, 213 Ariz. at 567, ¶ 22 .

2018"Strategic decisions are 'conscious, reasonably informed decision[s] made by an attorney with an eye to benefitting his client.' " Id. , quoting Pavel v. Hollins , 261 F.3d 210 , 218 (2d Cir. 2001) (alteration in Denz ).

2015But in the context of an ineffective assistance claim, “[strategic decisions are ‘conscious, reasonably informed decision[s] made by an attorney with an eye to benefitting his client.’ ” Denz, 232 Ariz. 441, 1111 , 306 P.3d at 102 , quoting Pavel v. Hollins, 261 F.3d 210, 218 (2d Cir.2001) (first alteration added, second alteration in Denz).

2015But in the context of an ineffective assistance claim, “[strategic decisions are ‘conscious, reasonably informed decision[s] made by an attorney with an eye to benefitting his client.’ ” Denz, 232 Ariz. 441, 1111 , 306 P.3d at 102 , quoting Pavel v. Hollins, 261 F.3d 210, 218 (2d Cir.2001) (first alteration added, second alteration in Denz).

2015But in the context of an ineffective assistance claim, “[strategic decisions are ‘conscious, reasonably informed decision[s] made by an attorney with an eye to benefitting his client.’ ” Denz, 232 Ariz. 441, 1111 , 306 P.3d at 102 , quoting Pavel v. Hollins, 261 F.3d 210, 218 (2d Cir.2001) (first alteration added, second alteration in Denz).

2022See Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000) (“[I]t is unfair to require an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit” in order to establish that the defendant was prejudiced by counsel’s failure to file a notice of appeal); Bowers, 192 Ariz. at 424, ¶ 19 (A defendant is not required “to demonstrate a more favorable outcome after trial” in order to establish prejudice in an ineffective-assistance claim involving a guilty plea).

2022Nevertheless, the merits of Neidig’s speedy-trial claim are relevant to determining prejudice because the viability of the claim informs whether it was “rational” for him to reject the plea offer, Padilla, 559 U.S. at 372 , after receiving “reasonable advice from counsel” about the speedy-trial issue, Roe, 528 U.S. at 486 . ¶16 Here, the superior court analyzed Neidig’s potential speedy- trial claim under both Rule 8 and constitutional precedents and concluded it lacked validity.

2022See Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000) (“[I]t is unfair to require an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit” in order to establish that the defendant was prejudiced by counsel’s failure to file a notice of appeal); Bowers, 192 Ariz. at 424, ¶ 19 (A defendant is not required “to demonstrate a more favorable outcome after trial” in order to establish prejudice in an ineffective-assistance claim involving a guilty plea).

2022See State v. Escareno-Meraz, 232 Ariz. 586, 587, ¶ 4 (App. 2013); State v. Mata, 185 Ariz. 319 , 336–37 (1996). ¶26 Although the claim is precluded, we note that we have rejected a claim that appellate counsel was ineffective for failing to raise an Apprendi claim before Blakely.

2019See State v. Donald, 198 Ariz. 406, 413, ¶ 17 (App. 3 STATE v. PALAZZETTI Decision of the Court 2000) (observing that defendants “must provide specific factual allegations,” and not merely “conclusory assertion[s],” to warrant an evidentiary hearing on an ineffective assistance claim).

2019See, e.g. , United States v. Batamula , 823 F.3d 237 , 242-43 (5th Cir. 2016) (holding that defendant "has failed to put forward a rational explanation of his desire to proceed to trial" where his deportability was "a fait accompli before he pleaded guilty"); cf. United States v. Donjuan , 720 F. App'x 486 , 490 (10th Cir. 2018) (reasoning that an illegal alien cannot establish prejudice on an ineffective assistance claim due to deportation because their deportation was a result of their illegal presence, not their attorney's erroneous advice), cert. denied , --- U.S. ----, 139 S. Ct. 590 , 20

2018See State v. Borbon, 146 Ariz. 392, 399 (1985).

2015As a result of these alleged failures, Father claims he was prejudiced. ¶33 We will review an ineffective assistance of counsel claim on direct appeal only if “we may clearly determine from the record that the ineffective assistance claim is meritless.” State v. Whalen, 192 Ariz. 103, 110 (App. 1997) (quoting State v. Carver, 160 Ariz. 167, 175 (1989)).

2014See Glaze v. Larsen, 207 Ariz. 26, 31, ¶ 20 , 83 P.3d 26, 31 (2004); John M. v. Ariz. Dep’t of Econ.

2014See Glaze v. Larsen, 207 Ariz. 26, 31, ¶ 20 , 83 P.3d 26, 31 (2004); John M. v. Ariz. Dep’t of Econ.

2013See State v. Farni, 112 Ariz. 132, 133 , 539 P.2d 889, 890 (1975). ¶8 Denz argues that, based on the evidence presented, he “proved” counsel’s “decision was incompetent,” “unreasonable,” and “prejudiced [Denz’s] defense.” At trial, counsel elicited testimony from the state’s three medical experts that they could not state with certainty when the infant’s injuries — except the torn frenulum — had occurred and that those injuries could have occurred days before the alleged incident and gone unnoticed.

2013See State v. Farni, 112 Ariz. 132, 133 , 539 P.2d 889, 890 (1975). ¶8 Denz argues that, based on the evidence presented, he “proved” counsel’s “decision was incompetent,” “unreasonable,” and “prejudiced [Denz’s] defense.” At trial, counsel elicited testimony from the state’s three medical experts that they could not state with certainty when the infant’s injuries — except the torn frenulum — had occurred and that those injuries could have occurred days before the alleged incident and gone unnoticed.

2007And, in State v. Spreitz, we held unequivocally that “ineffective assistance of counsel claims are to be brought in Rule 32 proceedings.” 202 Ariz. 1 , 3 ¶ 9, 39 P.3d 525, 527 (2002). ¶ 17 Spreitz involved an ineffective assistance claim raised on direct appeal from a conviction and thus can be distinguished from the ease at hand.

2007And, in State v. Spreitz, we held unequivocally that “ineffective assistance of counsel claims are to be brought in Rule 32 proceedings.” 202 Ariz. 1 , 3 ¶ 9, 39 P.3d 525, 527 (2002). ¶ 17 Spreitz involved an ineffective assistance claim raised on direct appeal from a conviction and thus can be distinguished from the ease at hand.

1992Though no evidence on this issue was taken because the trial court erroneously ruled that the question could be raised on direct appeal and therefore was precluded, State v. Valdez, 160 Ariz. 9, 15 , 770 P.2d 313, 319 (1989), we are able to “clearly determine from the record that the ineffective assistance claim is meritless.” State v. Carver, 160 Ariz. 167, 175 , 771 P.2d 1382, 1390 (1989).

1992Though no evidence on this issue was taken because the trial court erroneously ruled that the question could be raised on direct appeal and therefore was precluded, State v. Valdez, 160 Ariz. 9, 15 , 770 P.2d 313, 319 (1989), we are able to “clearly determine from the record that the ineffective assistance claim is meritless.” State v. Carver, 160 Ariz. 167, 175 , 771 P.2d 1382, 1390 (1989).