                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                JOHN KRISTOFFER LARSGARD, Petitioner.

                         No. 1 CA-CR 18-0598 PRPC
                              FILED 4-25-2019


     Petition for Review from the Superior Court in Navajo County
                         No. S0900CR201100767
                             S0900CR201100780
                  The Honorable Dale P. Nielson, Judge

              REVIEW GRANTED AND RELIEF DENIED


                                   COUNSEL

Navajo County Attorney’s Office, Holbrook
By Michael R. Shumway
Counsel for Respondent

Law Office of Elizabeth M. Hale, Lakeside
By Elizabeth M. Hale
Counsel for Petitioner
                           STATE v. LARSGARD
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Jennifer B. Campbell joined.



H O W E, Judge:

¶1            John Kristoffer Larsgard petitions this Court for review from
the dismissal of his petition for post-conviction relief. We have considered
the petition for review and for the reasons stated, grant review but deny
relief.

¶2           After a jury trial, Larsgard was convicted of six counts of
aggravated assault and one count of felony endangerment for driving into
a crowd of people celebrating at a festival in Winslow.1 The trial court
sentenced him to a presumptive aggregate term of 7.5 years’ imprisonment.

¶3             On direct appeal, Larsgard argued that (1) the medications
administered by jail medical staff significantly affected his access to counsel
and ability to participate in his own defense, (2) the State committed various
disclosure violations, and (3) the jury’s verdicts were contrary to the weight
of the evidence. See State v. Larsgard, 1 CA-CR 12-0283, 2013 WL 1908037, at
*1–4 ¶¶ 2–18 (Ariz. App. May 7, 2013) (mem. decision). We disagreed,
affirming his convictions and sentences. Id. at *4 ¶ 19.

¶4            Larsgard timely petitioned for post-conviction relief, raising
a litany of constitutional and procedural issues. The trial court summarily
dismissed the petition, in part, but set an evidentiary hearing as to
Larsgard’s claims that the jury should have been instructed about the
lesser-included offenses of aggravated assault and that the Arizona
Department of Corrections (“DOC”) denied his access and right to counsel.
After hearing testimony from Larsgard and his former counsel, the court
dismissed the remaining claims. This petition for review followed.



1      The State originally charged Larsgard with a total of 36 counts in two
separate cases, consolidated for trial. The trial court subsequently granted
the State’s motion to dismiss all counts, except the nine counts presented to
the jury. The jury acquitted Larsgard of two counts of aggravated assault.


                                      2
                            STATE v. LARSGARD
                             Decision of the Court

¶5            We will not reverse a trial court’s ruling on a petition for
post-conviction relief absent an abuse of discretion. State v. Schrock, 149
Ariz. 433, 441 (1986). If a petitioner seeks review after an evidentiary
hearing, we review the court’s findings of fact to determine if they are
clearly erroneous. State v. Herrera, 183 Ariz. 642, 648 (App. 1995).

               1. Newly Discovered Evidence

¶6            Larsgard argues that the trial court abused its discretion in
dismissing his claim that the DOC’s inability to provide proper medical
treatment for his pre-existing medical condition violates his constitutional
rights and constitutes newly discovered evidence under Arizona Rule of
Criminal Procedure (“Rule”) 32.1(e). Larsgard contends further that he is
entitled to an evidentiary hearing to determine whether the court knew of
the “deplorable health care conditions” at the DOC when imposing his
imprisonment term.

¶7            To prevail on a claim of newly discovered evidence under
Rule 32.1(e), and thereby exempted from preclusion, a defendant must
show that the proffered evidence (1) existed at the time of trial but was
discovered only after trial; (2) could not have been discovered through the
exercise of due diligence; (3) would not be simply cumulative or
impeaching; (4) would be relevant to the case; and (5) would probably have
altered the verdict, finding, or sentence if known at the time of trial. See
Ariz. R. Crim. P. 32.1(e), 32.2(a)–(b); State v. Bilke, 162 Ariz. 51, 52–53 (1989);
State v. Saenz, 197 Ariz. 487, 490 ¶ 13 (App. 2000). A newly diagnosed
medical condition that existed at the time of trial can constitute newly
discovered evidence relevant to sentencing. Bilke, 162 Ariz. at 53 (diagnosis
of post-traumatic stress disorder); State v. Cooper, 166 Ariz. 126, 128–30
(App. 1990) (diagnosis of human immunodeficiency virus).

¶8             Here, Larsgard fails to show that he is entitled to relief under
Rule 32.1(e). The issue of Larsgard’s medical condition, namely symptoms
             2

associated with a neck injury, arose throughout the trial and sentencing. At


2      Larsgard relies heavily on the factual similarities between the
current case and State v. Rininger, Superior Court of Cochise County, Cause
No. CR20093923-001. The defendant in Rininger sought review of the
summary dismissal of his Rule 32 petition, and this Court denied relief in
State v. Rininger, 2 CA-CR 2012-0512-PR, 2013 WL 1460559, *2 ¶ 5 (Ariz.
App. Apr. 10, 2013) (mem. decision). Although Rininger is not controlling,
we note that our findings in that decision are consistent with those in the
current case. See Id. at *1–2 ¶¶ 1–5.


                                        3
                            STATE v. LARSGARD
                             Decision of the Court

the very least, the record shows that the trial court knew of the medical
condition when imposing his imprisonment terms.

¶9             Regarding his pre-existing medical condition, Larsgard has
not shown why he did not raise the constitutionality of his sentences on
direct appeal; accordingly, he is precluded from raising the issue here, and
no exceptions to preclusion apply. See Ariz. R. Crim. P. 32.1(e), 32.2(a)–(b).
Moreover, to the extent Larsgard argues his medical condition has
worsened while in the DOC’s custody, this claim cannot be considered a
newly discovered fact under Rule 32.1(e) because it did not exist at the time
of trial or sentencing. See Bilke, 162 Ariz. at 53. Thus, the trial court did not
abuse its discretion in summarily dismissing this claim.

               2. Jury Instruction on Lesser-Included Offenses

¶10              Larsgard also argues that he was entitled to have the jury
instructed on the lesser-included offenses of aggravated assault and that the
court’s failure to provide such instruction was fundamental error. Any
issue a defendant could have raised on direct appeal is precluded unless an
exception under Rule 32.2(b) applies. Ariz. R. Crim. P. 32.2(a)–(b). Claims
of fundamental error are not exempt from preclusion. If the supreme court
“had intended that fundamental error be an exception to preclusion under
Rule 32.2, the court presumably would have expressly said so in the rule
itself[.]” State v. Swoopes, 216 Ariz. 390, 403 ¶ 42 (App. 2007).

¶11            Larsgard did not raise this claim on direct appeal and nothing
shows that any exception under Rule 32.2(b) applies. See Larsgard, 1 CA-CR
12-0283, at *1–4 ¶¶ 2–18. His claim is therefore precluded under Rule 32.2(a)
and (b).

               3. Access to Appellate Counsel

¶12            Larsgard also contends that the trial court abused its
discretion in dismissing his claim that the DOC violated his right to counsel.
A defendant’s constitutional right to effective assistance of counsel on
appeal and ineffective assistance of appellate counsel is a cognizable Rule
32 claim. See Ariz. R. Crim. P. 6.1(a), 31.5(a), (e); Herrera, 183 Ariz. at 645. To
obtain relief on any Rule 32 claim, however, the petition for review must
contain a statement of the issue presented with supporting material facts
and such facts must have the appearance of validity. See Ariz. R. Crim. P.
32.9(c)(4)(B); State v. Suarez, 23 Ariz. App. 45, 46 (1975). Moreover, a
defendant’s own self-serving assertions are generally insufficient to raise a
colorable Rule 32 claim. State v. Wilson, 179 Ariz. 17, 20 (App. 1993).



                                        4
                           STATE v. LARSGARD
                            Decision of the Court

¶13          Larsgard contends that the DOC hindered his ability to
communicate with appellate counsel during vital stages of the appeal.
Aside from Larsgard’s self-serving statements, the record from the
evidentiary hearing shows that Larsgard corresponded with appellate
counsel during the time in question. Although appellate counsel testified
he had some difficulty speaking with him telephonically, counsel knew of
Larsgard’s position regarding the appeal and they communicated regularly
through legal mail. The trial court’s finding that the DOC did not restrict
Larsgard’s access to counsel is supported by the record.

              4. Ineffective Assistance of Counsel

¶14           Larsgard further argues that the trial court abused its
discretion in dismissing his claim of ineffective assistance of trial and
appellate counsel. To state a colorable claim of ineffective assistance of
counsel, a defendant must show that counsel’s performance fell below
objectively reasonable standards and that the deficient performance
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 688 (1984);
State v. Bennett, 213 Ariz. 562, 567 ¶ 21 (2006). “Defense counsel’s
determinations of trial strategy, even if later proven unsuccessful, are not
ineffective assistance of counsel.” State v. Valdez, 160 Ariz. 9, 15 (1989).
Similarly, appellate counsel’s “strategic decision to ‘winnow out weaker
arguments on appeal and focus on’ those more likely to prevail is an
acceptable exercise of professional judgment.” State v. Febles, 210 Ariz. 589,
596 ¶ 20 (App. 2005) (quoting Jones v. Barnes, 463 U.S. 745, 746 (1983)).

¶15           Larsgard’s claim fails to meet the Strickland standard. While
representing Larsgard, counsel conducted pretrial litigation, used an
independent investigator, formulated a targeted defense strategy, sought
leniency at sentencing, and raised multiple issues in a timely appeal. See
Larsgard, 1 CA-CR 12-0283, at *1–4 ¶¶ 2–18. Although later proven to be
unsuccessful, Larsgard has not shown that counsel’s strategic decisions in
trial and the direct appeal constituted ineffective assistance of counsel.
Thus, the trial court did not abuse its discretion in dismissing this claim.

¶16           Accordingly, we grant review but deny relief.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA
                                        5
