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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                         RENETTA KING, Petitioner.

                         No. 1 CA-CR 15-0552 PRPC
                              FILED 7-25-2017


    Petition for Review from the Superior Court in Coconino County
                           No. CR2010-00692
              The Honorable Cathleen Brown Nichols, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Coconino County Attorney’s Office, Flagstaff
By William Ring
Counsel for Respondent

White Law Offices, PLLC, Flagstaff
By Wendy F. White
Counsel for Petitioner
                              STATE v. KING
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Jon W. Thompson joined.


M c M U R D I E, Judge:

¶1            Petitioner Renetta King petitions this court for review from
the denial of her petition for post-conviction relief. For reasons that follow,
we grant review but deny relief

             FACTS AND PROCEDURAL BACKGROUND

¶2             A jury found King guilty of two counts of sale of dangerous
drugs. The superior court sentenced her to an aggregate term of ten years’
imprisonment and this court affirmed her convictions and sentences on
direct appeal. State v. King, 1 CA-CR 12-0183, 2013 WL 3326668 (Ariz. App.
June 27, 2013) (mem. decision). King then filed a petition for post-conviction
relief that presented colorable claims. The superior court held a two-day
evidentiary hearing, after which the court denied the petition.

                               DISCUSSION

¶3             In her petition for review, King argues (1) there were
irreconcilable conflicts with her trial counsel that denied her the right to
effective assistance of counsel, and (2) her appellate counsel was ineffective
when counsel failed to raise an issue regarding an alleged violation of her
right to confront a confidential informant who did not testify at trial. “We
examine a trial court’s findings of fact after an evidentiary hearing to
determine if they are clearly erroneous.” State v. Berryman, 178 Ariz. 617,
620 (App. 1994). “We will not disturb a trial court’s ruling on a petition for
post-conviction relief absent a clear abuse of discretion.” State v. Swoopes,
216 Ariz. 390, 393, ¶ 4 (App. 2007).

¶4             Although King argues that irreconcilable conflicts with her
trial counsel amounted to ineffective assistance of counsel, her petition does
not address any witness testimony or other evidence from the evidentiary
hearing, and does not otherwise cite to any portion of the hearing. See State
v. Paris-Sheldon, 214 Ariz. 500, 505, ¶ 12 (App. 2007) (“[A] defendant must
put forth evidence of a severe and pervasive conflict with his attorney or
evidence that [the defendant] had such minimal contact with the attorney


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                              STATE v. KING
                            Decision of the Court

that meaningful communication was not possible.”) (emphasis added).
King’s petition for review also does not address any of the superior court’s
findings of fact or conclusions of law. Instead, King repeats the claims
raised in superior court regarding her lack of communication with trial
counsel. The superior court’s findings from the evidentiary hearing
contradict King’s contentions. At the hearing, King’s trial counsel testified
that he communicated with King throughout the trial, except when King
refused to speak with him on the last day of trial. Furthermore, while King
argues trial counsel was late and physically absent from a pretrial hearing,
the transcripts show he appeared telephonically and effectively represented
King at the hearing. Therefore, King has not established that the findings
the superior court made after the evidentiary hearing were clearly
erroneous.

¶5             King also argues she was denied effective assistance of
counsel on appeal by counsel’s failure to raise a confrontation issue. King
likewise raised this issue in her petition for post-conviction relief, arguing
appellate counsel did not appeal the admission at trial of audio/video
conversations that were admitted at trial, and instead chose to focus on
other appellate issues. The superior court found appellate counsel was not
ineffective because King failed to provide evidence that the alleged failure
to raise the issue between the confidential informant and King fell below
the prevailing professional norms, or that it would have changed the
outcome of the appeal.

¶6             Trial counsel preserved the issue for appellate review by
raising the issue in response to the State’s Motion in Limine for the
admission of the audio/video recordings and statements of the confidential
informant. Because the issue is not precluded, we must determine whether
the superior court erred by finding that appellate counsel did not render
ineffective assistance of counsel. To prove a 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. 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.; State v. Salazar, 146 Ariz. 540, 541 (1985).

¶7            King did not present evidence as to how appellate counsel
was deficient and ineffective by not raising the confrontation issue.
Generally, appellate counsel is not ineffective for selecting some issues and
rejecting others.” State v. Herrera, 183 Ariz. 642, 647 (App. 1995). Without
more, King’s argument that counsel was ineffective for simply not raising
the confrontation issue does not prove a claim of ineffective assistance. See


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                              STATE v. KING
                            Decision of the Court

State v. Valdez, 167 Ariz. 328, 329–30 (1991) (a strong presumption exists that
appellate counsel provided effective assistance). Appellate counsel’s
decisions regarding which issues to raise on appeal are binding on the
defendant and preclude him or her from raising those issues in a later Rule
32 proceeding. State v. Alford, 157 Ariz. 101, 103 (App. 1988); see also Davila
v. Davis, 2017 WL 2722418, *10 (U.S. June 26, 2017) (“Declining to raise a
claim on appeal . . . is not deficient performance unless that claim was
plainly stronger than those actually presented to the appellate court.”).
King has failed to substantiate how appellate counsel’s performance was
deficient and further fails to demonstrate that but for the error, the appeal
would have resulted differently.1

                               CONCLUSION

¶8            We grant review but deny relief.




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




1      King’s argument regarding the Confrontation Clause was also not
“likely” to succeed as she suggests. A confidential informant’s statements
as part of an audio/video conversation with the defendant, when provided
as context for a defendant’s own statements, are not considered testimonial
and therefore do not violate the Confrontation clause. See State v. Martin,
225 Ariz. 162, 166–67, ¶ 20 (App. 2010); see also United States v. Nettles, 476
F.3d 508, 517–18 (7th Cir. 2007) (a confidential informant is not considered
a witness when his recorded statements merely provide context to a
defendant’s admissions); State v. Boggs, 218 Ariz. 325, 334, ¶ 35 (2008) (an
interviewer’s videotaped statements during an interrogation were
admissible to show context).


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