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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  DAVID JEROME WILLIAMS, Petitioner.

                         No. 1 CA-CR 16-0219 PRPC
                              FILED 10-3-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2014-146093-001
                  The Honorable Alfred M. Fenzel, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

David Jerome Williams, San Luis
Petitioner



                       MEMORANDUM DECISION

Presiding Judge James P. Beene delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Kent E. Cattani joined.
                           STATE v. WILLIAMS
                           Decision of the Court

B E E N E, Judge:

¶1            David Jerome Williams (“Williams”) petitions this court for
review from the dismissal of his petition for post-conviction relief, filed
pursuant to Arizona Rule of Criminal Procedure (“Rule”) 32. We have
considered the petition for review and, for the reasons stated, grant review
but deny relief.

¶2            Police officers responded to a call regarding a shooting in a
residential neighborhood. A witness informed the officers that Williams
fired shots into the ground near an apartment building before fleeing the
scene with the weapon. The officers were aware Williams could not
lawfully possess firearms because he had several prior felony convictions
and his civil rights had not been restored. The officers subsequently
obtained a search warrant, and upon searching Williams’ residence,
discovered 4 grams of heroin and 24 grams of methamphetamine in a desk.
After he was informed of his Miranda1 rights, Williams admitted during a
police interview that “he was selling the heroin and methamphetamine”
found in his home.

¶3           Williams subsequently pled guilty to one count of possession
of dangerous drugs for sale, a Class 2 felony, and he acknowledged a prior
conviction for the same offense. The superior court imposed a 12-year
prison term, and Williams filed a timely notice of post-conviction relief.
After reviewing the record and other materials, including correspondence
from Williams, appointed counsel could not find any claims for relief.

¶4            Williams proceeded pro per and filed a petition for post-
conviction relief, raising a claim of ineffective assistance of counsel (“IAC”)
based on trial counsel’s failure to “hold a defensive interview” and to seek
suppression of the drugs discovered during the search of Williams’ home.
According to Williams, the search violated his Fourth Amendment rights
because the warrant only mentioned items connected with the shooting and
the associated crimes of aggravated assault, discharge of a firearm at a
residential structure, assisting a criminal street gang, and misconduct
involving weapons, but not illicit drugs. Thus, Williams insisted a motion
to suppress the drugs would have succeeded and provided him more
leverage for him during the plea negotiation process, resulting in a lesser
sentence. The State responded to the petition, Williams replied, and the
court summarily denied relief. This timely petition for review followed.



1      Miranda v. Arizona, 384 U.S. 436 (1966).


                                      2
                            STATE v. WILLIAMS
                            Decision of the Court

¶5            Williams argues the superior court erred in not conducting an
evidentiary hearing because he presented a colorable IAC claim. Without
citing to relevant authority, Williams summarily asserts that counsel’s
failure to file a motion to suppress “the meth” was “deficient
[representation] on its face.” “Clearly,” Williams continues, “had counsel .
. . moved to challenge the warrant and seizure of the methamphetamines,
the results would have been different.”

¶6             Absent an abuse of discretion or error of law, we will not
disturb the trial court’s ruling on a petition for post-conviction relief. State
v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). “We may affirm on any basis
supported by the record.” State v. Robinson, 153 Ariz. 191, 199 (1987).

¶7            Summary dismissal of a petition for post-conviction relief is
appropriate “[i]f the court . . . determines that no . . . claim presents a
material issue of fact or law which would entitle the defendant to relief
under this rule and that no purpose would be served by any further
proceedings.” Ariz. R. Crim. P. 32.6(c). To be entitled to an evidentiary
hearing, a petitioner must present a colorable claim. State v. Krum, 183 Ariz.
288, 292 (1995). A colorable claim is one that, if the allegations are true,
would probably have changed the outcome. State v. Amaral, 239 Ariz. 217,
220, ¶ 11 (2016). In determining whether a claim is colorable, the allegations
are viewed in light of the entire record. State v. Lemieux, 137 Ariz. 143, 146
(App. 1983). To state a colorable claim of ineffective assistance of counsel,
a defendant must show that counsel’s performance fell below objectively
reasonable standards. Strickland v. Washington, 466 U.S. 668, 687–88 (1984).

¶8            The superior court did not err by summarily dismissing the
petition for post-conviction relief because Williams failed to establish that
counsel’s failure to seek suppression of the drugs fell below objectively
reasonable standards. Referring to a well-known exception to the warrant
requirement, Williams asserts the drugs were not in “plain sight” because
they were found “in a closed desk drawer of [his] study.” However, as the
United States Supreme Court has said:

       A lawful search of fixed premises generally extends to the
       entire area in which the object of the search may be found and
       is not limited by the possibility that separate acts of entry or
       opening may be required to complete the search. Thus, a
       warrant that authorizes an officer to search a home for illegal
       weapons also provides authority to open closets, chests,
       drawers, and containers in which the weapon might be found.




                                       3
                            STATE v. WILLIAMS
                            Decision of the Court

United States v. Ross, 456 U.S. 798, 820–21 (1982) (footnote omitted).

¶9            Here, the search warrant affidavit lists several items that
could reasonably be found in a desk drawer. Thus, consistent with Ross,
officers conducting the search of Williams’ residence were authorized to
search the desk’s drawers and seize the drugs discovered there. See State v.
DeCamp, 197 Ariz. 36, 39, ¶ 14 (App. 1999) (“[A]s long as the law-
enforcement officers are authorized to be where they are, they may seize
any item in plain view if its evidentiary value is at once apparent.”).

¶10            Williams cites no facts that suggest the seized drugs were not
in plain view once officers opened the desk drawer or that the drugs’
evidentiary value was not apparent at that moment. Further, he cites no
authority for the proposition that police officers conducting a search
pursuant to a warrant violate the Fourth Amendment’s prohibition against
unreasonable property seizures if they discover and seize evidence of a
crime that is not the basis of the investigation that gave rise to the warrant.
Absent such facts and authority, Williams’ trial counsel could reasonably
conclude that a motion to suppress would not succeed. See James v. Borg, 24
F.3d 20, 27 (9th Cir. 1994) (“Counsel’s failure to make a futile motion does
not constitute ineffective assistance of counsel.”). Williams presents no
authority supporting a contrary conclusion. Accordingly, Williams failed
to raise a colorable IAC claim, and the superior court was entitled to
summarily dismiss the Rule 32 proceeding.

¶11           We therefore grant review but deny relief.




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




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