                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
                ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                      STATE OF ARIZONA, Respondent,

                                          v.

                     JEREMY LYNN NELSON, Petitioner.

                          No. 1 CA-CR 13-0008 PRPC
                            FILED 04/24/2014


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2010-165553-001
           The Honorable Robert L. Gottsfield, Judge, Retired

                     REVIEW GRANTED; REMANDED


                                    COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Jeremy Lynn Nelson, Tucson
Petitioner Pro Se
                            STATE v. NELSON
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Donn Kessler delivered the decision of the Court, in
which Judge Patricia K. Norris joined and Judge Maurice Portley specially
concurred.


K E S S L E R, Presiding Judge:

¶1            Jeremy Lynn Nelson petitions this Court for review of the
summary dismissal of his petition for post-conviction relief. Nelson
claimed ineffective assistance of counsel (“IAC”) because his counsel
allegedly failed to investigate, pursue, or advise him of a possible motion
to suppress evidence prior to his pleading guilty. We conclude the
superior court erred in determining that, at the time Nelson pled guilty, a
motion to suppress evidence based on an allegedly illegal, trespassory
placement of a GPS device was barred as a matter of law. Accordingly,
we grant review and remand for an evidentiary hearing on Nelson’s IAC
claim.

              FACTUAL AND PROCEDURAL HISTORY

¶2              Nelson pled guilty to attempted fraudulent schemes and
artifices, forgery, misconduct involving weapons, and possession of
dangerous drugs. The superior court sentenced him to an aggregate term
of thirteen years’ imprisonment for attempted fraud, forgery, and drug
possession, and placed him on a consecutive term of four years’ probation
for misconduct involving weapons.

¶3            Nelson petitioned for post-conviction relief pursuant to
Arizona Rule of Criminal Procedure 32.1(a), arguing that his trial counsel
was ineffective by failing to investigate, pursue, or advise him about the
prospects of a motion to suppress evidence obtained through warrantless
GPS tracking. His claims are based on United States v. Jones, 132 S.Ct. 945
(2012), for which certiorari had been granted and which was pending
review when Nelson pled guilty. In Jones, the Supreme Court held that
the government’s non-consensual and warrantless installation of a GPS
device on a suspect’s vehicle for the purpose of monitoring the vehicle’s
movements constitutes a search that ordinarily requires a warrant. 132
S.Ct. at 949. In response to Nelson’s petition, the State argued that at the
time Nelson pled guilty, warrantless GPS tracking did not implicate the


                                     2
                             STATE v. NELSON
                            Decision of the Court

Fourth Amendment as a matter of law, that trial counsel is not expected to
anticipate future changes in the law, and therefore it was not
unreasonable for trial counsel to not have investigated or advised Nelson
about the issue.

¶4              After additional briefing, as discussed below, the superior
court summarily dismissed Nelson’s petition, noting that the parties had
advised the court that no evidentiary hearing was needed “as basically a
question of law is presented.” The court concluded that “no colorable
claim [was] presented by trial counsel failing to anticipate what would
have been a major change in the law,” and that “[i]t was not unreasonable
for defense counsel to assume, if the issue came to mind at all, that
existing circuit court authority was overwhelmingly contrary to the view
that the placement of a GPS device constituted a search.”

¶5            Nelson now seeks review of the summary dismissal and
asks us to remand the matter for an evidentiary hearing. We have
jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).

                         STANDARD OF REVIEW

¶6            We review an order summarily dismissing a petition for
post-conviction relief for an abuse of discretion. State v. Bennett, 213 Ariz.
562, 566, ¶ 17, 146 P.3d 63, 67 (2006). “A trial court abuses its discretion if
it misapplies the law or exercises its discretion based on incorrect legal
principles,” State v. Slover, 220 Ariz. 239, 242, ¶ 4, 204 P.3d 1088, 1091
(App. 2009), or if it “predicates its decision upon irrational bases,” State v.
Fields, 196 Ariz. 580, 582, ¶ 4, 2 P.3d 670, 672 (App. 1999) (citation
omitted).

                               DISCUSSION

¶7            As a preliminary matter, based upon the facts in this case,
Nelson is not precluded from arguing for a remand to hold an evidentiary
hearing even though the parties had advised the superior court that such a
hearing was not needed. After receiving the State’s response and Nelson’s
reply to the petition, the superior court requested supplemental briefing
on the law governing warrantless GPS surveillance at the time Nelson
pled guilty. The supplemental briefs, therefore, addressed only an issue
of law. After submitting the supplemental briefs, the parties advised the
superior court that no evidentiary hearing was needed because the
question before the court was whether then-existing law would have




                                      3
                            STATE v. NELSON
                           Decision of the Court

made such a suppression motion futile.1 In context, then, we understand
the parties’ advisement as merely recognizing that trial counsel would
have had no reason to advise Nelson about the suppression issue if then-
binding law foreclosed it. If the superior court had concluded legal
support existed for such a motion, an evidentiary hearing would then be
needed to uncover the facts necessary to making an ultimate
determination on Nelson’s IAC claim.2 Accordingly, we reach the merits
of Nelson’s petition for review.

I.     Standard for Obtaining an Evidentiary Hearing

¶8             “A trial court may summarily dismiss a [petition for post-
conviction relief] only if it finds no ‘material issue of fact or law exists
which would entitle the defendant to relief.’” State v. Bowers, 192 Ariz.
419, 422, ¶ 10, 966 P.2d 1023, 1026 (App. 1998) (citation omitted); see also
Ariz. R. Crim. P. 32.6(c). A defendant is entitled to an evidentiary hearing,
however, if the petition presents a colorable claim—“that is a claim which,
if defendant’s allegations are true, might have changed the outcome.”
State v. Watton, 164 Ariz. 323, 328, 793 P.2d 80, 85 (1990); see also Ariz. R.
Crim. P. 32.6(c) and 32.8(a). “[W]hen doubt exists, a hearing should be
held to allow the defendant to raise the relevant issues, to resolve the
matter, and to make a record for review.” Bowers, 192 Ariz. at 422, ¶ 10,
966 P.2d at 1026 (quoting State v. D’Ambrosio, 156 Ariz. 71, 73, 750 P.2d 14,
16 (1988) (internal quotation marks omitted)).

1 The court’s minute entry also indicates that the parties said there was no
issue surrounding whether trial counsel advised Nelson of the prospects
of such a motion. We understand this to mean only that the truth of
Nelson’s factual allegations was not the determinative issue for purposes
of summary dismissal because, at this stage in the proceedings, the court
takes Nelson’s factual allegations as true. See State v. McCall, 160 Ariz.
119, 129, 770 P.2d 1165, 1175 (1989).
2 For example, the court might need to determine: (1) whether the facts

surrounding the GPS tracking in this case would have supported such a
motion; (2) what consideration, if any, Nelson’s trial counsel gave to the
issue; (3) the nature and extent of the evidence allegedly acquired through
the warrantless GPS surveillance and to which counts that evidence
related; (4) whether counsel advised Nelson of the possibility of a
suppression motion and the risks of doing so in light of the plea; and, if
not, (6) whether Nelson would, in fact, have rejected the plea had he been
advised about the merits, odds of success, and risks of pursuing such a
motion.



                                      4
                             STATE v. NELSON
                            Decision of the Court

¶9              To state a colorable IAC claim, 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, 687 (1984). “To establish deficient performance
during plea negotiations, a petitioner must prove that the lawyer either (1)
gave erroneous advice or (2) failed to give information necessary to allow
the petitioner to make an informed decision whether to accept the plea.”
State v. Donald, 198 Ariz. 406, 413, ¶ 16, 10 P.3d 1193, 1200 (App. 2000). To
show prejudice, a defendant must demonstrate that there is a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. In the
context of a guilty plea, a defendant can establish prejudice by showing
that, absent counsel’s erroneous advice, he would not have waived his
right to trial by entering a plea. Hill v. Lockhart, 474 U.S. 52, 59 (1985).

II.    The Basis for the Superior Court’s Summary Dismissal

¶10           The superior court found that Nelson pled “the necessary
condition that he would have rejected the plea and requested a
suppression hearing had he known there was a viable issue on the
constitutionality of placing a warrantless GPS device on [h]is vehicle . . . .”
In other words, the superior court determined that Nelson pled sufficient
facts to avoid summary dismissal based on the prejudice prong of the
Strickland test. The superior court is in the best position to determine
whether Nelson’s allegations would have changed his decision to accept
the plea. See State v. Adamson, 136 Ariz. 250, 265, 665 P.2d 972, 987 (1983)
(“The trial judge was in a much better position than we are to determine
the weight to be given the defendant’s claims in his petition and whether
or not the allegations taken as true would change the verdict.”). Given
that holding, we limit our review to the court’s conclusion that Nelson’s
petition failed to state a sufficient legal basis for counsel’s allegedly
deficient performance (i.e., counsel’s alleged failure to investigate or
advise him of a motion to suppress based on the GPS tracking).

¶11           Generally, absent a compelling tactical reason, counsel
renders deficient performance by failing to move “to suppress evidence
obtained through a questionably legal search.” State v. Fillmore, 187 Ariz.
174, 181, 927 P.2d 1303, 1310 (App. 1996). We understand the court’s
reasoning to be that as a matter of law any motion to challenge the legality
of warrantless GPS tracking would have been frivolous. But, under then-
existing law such a motion would not have been frivolous.




                                      5
                             STATE v. NELSON
                            Decision of the Court

III.   Then-Existing Law Did Not Preclude a Motion to Suppress
       Evidence Obtained Through Warrantless GPS Surveillance

¶12           “A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.” Strickland,
466 U.S. at 689. Failure to predict future changes in the law is not
ineffective assistance because “[c]lairvoyance is not a required attribute of
effective representation.” State v. Febles, 210 Ariz. 589, 597, ¶ 24, 115 P.3d
629, 637 (App. 2005) (citation omitted). Accordingly, in evaluating
whether trial counsel’s actions—or lack thereof—presented a colorable
IAC claim, we limit ourselves to the legal landscape as it existed when
Nelson pled guilty.

¶13           As we have recently explained in State v. Mitchell, 1 CA-CR
13-0339, slip op. at *14, ¶ 31 (Ariz. App. Apr. 21, 2014), an opinion issued
after the superior court denied Nelson’s petition, the law governing GPS
surveillance around the time Nelson pled guilty was unsettled. No
binding Arizona authority addressed GPS surveillance or otherwise
authorized law enforcement to attach a GPS device to private property,
without a warrant or permission from the property owner, and use the
device to track and aggregate data on a person’s movements. Nor did any
United States Supreme Court decision directly address GPS tracking,
including United States v. Knotts, 460 U.S. 276 (1983), a case the State relied
on in the superior court and here to argue to the contrary.

¶14            As we explained in Mitchell, Knotts did not address GPS
surveillance, nor did it address a situation in which law enforcement
attached a tracking device to private property without permission from
the property owner. Mitchell, 1 CA-CR 13-0339, slip op. at *14-15, ¶ 31.
Further, Knotts left open the question of whether more dragnet
surveillance techniques would implicate the Fourth Amendment. 460 U.S.
at 284. Thus, Knotts did not preclude as a matter of law a meritorious
motion to suppress evidence obtained through warrantless GPS tracking.
See State v. Allen, No. 2011-L-157, 2013 WL 501744, at *4, ¶ 22 (Ohio Ct.
App. Feb. 8, 2013) (reaching similar conclusion, noting that before Jones no
Ohio Supreme Court or United States Supreme Court authority expressly
addressed GPS tracking, and finding that counsel rendered ineffective
assistance by not moving to suppress evidence obtained through GPS
surveillance).




                                      6
                            STATE v. NELSON
                           Decision of the Court

¶15            The legal landscape at the time of Nelson’s plea shows that
courts were divided on the legality of GPS surveillance. Although the
predominate view among federal circuit courts was that GPS surveillance
did not implicate the Fourth Amendment, see United States v. Hernandez,
647 F.3d 216 (5th Cir. 2011); United States v. Cuevas-Perez, 640 F.3d 272 (7th
Cir. 2011), vacated in light of Jones, 132 S.Ct. 1534 (2012); United States v.
Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010), vacated in light of Jones, 132
S.Ct. 1533 (2012); United States v. Marquez, 605 F.3d 604 (8th Cir. 2010);
United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), this view was not
unanimous. In United States v. Maynard, 615 F.3d 544, 563, 568 (D.C. Cir.
2010)—the case that ultimately became Jones—the Federal Circuit Court
for the District of Columbia concluded that the warrantless placement and
use of a GPS device to monitor a suspect’s vehicle without permission of
the owner violated the Fourth Amendment under the reasonable-
expectation-of-privacy test announced in Katz v. United States, 389 U.S.
347, 360-61 (1967) (Harlan, J., concurring). Furthermore, several state
courts had concluded that GPS tracking violated state constitutional
privacy protections. See State v. Holden, 54 A.3d 1123 (Del. Super. Ct.
2010); Commonwealth v. Connolly, 913 N.E.2d 356 (Mass. 2009); People v.
Weaver, 909 N.E.2d 1195 (N.Y. 2009); State v. Jackson, 76 P.3d 217 (Wash.
2003). As a result, there was authority to support a motion to suppress
evidence obtained through warrantless GPS surveillance. See Allen, No.
2011-L-157, 2013 WL 501744, at *4, ¶ 21 (“Taken as a whole, of the various
appellate courts that considered the ‘GPS’ issue . . . a majority held that it
was unnecessary for the police officers to obtain a search warrant . . .
because use of a tracking device does not constitute a search. However,
the issue had not been the subject of extensive litigation, especially in the
state of Ohio. Furthermore, there was authority favorable to appellant on
the issue.”).3

¶16           Accordingly, whether Nelson’s trial counsel should have
investigated or advised Nelson of a possible motion to suppress presents a
colorable IAC claim. In so holding, we do not suggest that counsel is
expected as a matter of law to anticipate future changes in the law or to be


3 Moreover, the weight of circuit court authority did not preclude a
challenge to GPS surveillance in Arizona because federal circuit court
decisions, although persuasive, are not binding on Arizona courts. See
Planning Grp. of Scottsdale v. Lake Mathews Mineral Props., Ltd., 226 Ariz.
262, 267, ¶ 22, 246 P.3d 343, 348 (2011); State v. Montano, 206 Ariz. 296, 297
n.1, ¶ 1, 77 P.3d 1246, 1247 n.1 (2003).



                                      7
                             STATE v. NELSON
                            Decision of the Court

cognizant of every case pending review.4 Rather, then-existing law was
unsettled and, therefore, the issue of warrantless GPS surveillance was
open to non-frivolous challenges.

IV.    Nelson is Entitled to an Evidentiary Hearing

¶17            That Nelson was offered a plea in this case might suggest
that strategic reasons existed for not pursuing such a motion.
“[D]isagreements in trial strategy will not support a claim of [IAC],
provided the challenged conduct has some reasoned basis.” State v.
Nirschel, 155 Ariz. 206, 208, 745 P.2d 953, 955 (1987). There is generally a
“‘strong presumption’ . . . that counsel’s actions were choices made for
strategic or tactical reasons.” State v. Santanna, 153 Ariz. 147, 150, 735 P.2d
757, 760 (1987). It does not appear from this limited record, however, that
the superior court based its summary dismissal on a determination that
trial counsel’s performance was justified by a strategic decision.

¶18           At this stage of the proceedings, we must assume that the
facts alleged in Nelson’s petition are true. State v. McCall, 160 Ariz. 119,
129, 770 P.2d 1165, 1175 (1989) (“A colorable claim exists when the facts
alleged by the defendant in support of his claim, if taken as true, would
entitle the defendant to relief.” (emphasis added)).            Given this
presumption, an evidentiary hearing should have been conducted to
permit Nelson to present his facts and to hear from trial counsel in
resolving the petition.

                              CONCLUSION

¶19          The superior court found Nelson pled sufficient facts to
avoid summary dismissal based on lack of prejudice, but erroneously
determined that his petition failed as a matter of law because then-existing
law precluded any motion to suppress evidence obtained through GPS
surveillance. Accordingly, for the foregoing reasons we remand for an
evidentiary hearing. We emphasize, however, that at this stage we do not
and cannot conclude that counsel rendered ineffective assistance. We


4 Knowledge of cases pending before an appellate court that would
control an issue facing a client can be one factor to consider in IAC claims,
but any duty to be aware of those cases would be fact-specific. Given the
lack of any evidentiary hearing in this case to develop the facts underlying
the GPS surveillance and the reasons no suppression motion was pursued
precludes any conclusion on counsel’s effectiveness for the IAC claim.



                                      8
                            STATE v. NELSON
                           Decision of the Court

merely conclude that Nelson submitted a colorable claim that justifies an
evidentiary hearing on the issue. See Fillmore, 187 Ariz. at 182, 927 P.2d at
1311.



P O R T L E Y, Judge, specially concurring:

¶20           Although I agree that this matter should be remanded for an
evidentiary hearing on the ineffective assistance of counsel claim, I write
separately. I see the issue as simply whether the trial counsel advised her
client about the state of the law as it then existed, given the factual
information she had about the charges, including the police use of GPS, as
well as the plea offer, and whether Nelson wanted to proceed with the
proffered offer.

¶21           As we noted, the parties advised the superior court that no
evidentiary hearing was necessary because the issue could be resolved as
a matter of law. I am confident that once the superior court hears the
evidence, the court can apply Strickland to resolve Nelson’s claim of
ineffective assistance of counsel. As a result, I see no need for footnotes 2
and 4.




                                  :gsh




                                     9
