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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   JOSHUA EUGENE PATTON, Petitioner.

                          No. 1 CA-CR 15-0815 PRPC
                               FILED 11-28-2017


     Petition for Review from the Superior Court in Coconino County
                          No. S0300CR201100941
                   The Honorable Mark R. Moran, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

Navajo County Attorney’s Office, Holbrook
By Jonathan Apirion
Counsel for Respondent

Erika A. Arlington Esq. PC, Flagstaff
By Erika A. Arlington
Counsel for Petitioner
                            STATE v. PATTON
                            Decision of the Court



                      MEMORANDUM DECISION

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


C A T T A N I, Judge:

¶1            Joshua Eugene Patton petitions for review from the superior
court’s summary dismissal of his petition for post-conviction relief. For
reasons that follow, we grant review but deny relief.

¶2             Patton was charged with burglary, armed robbery, theft, two
counts of aggravated assault, endangerment, and misconduct involving
weapons (prohibited possessor). A jury convicted Patton of misconduct
involving weapons, and he was acquitted of the remaining charges. The
superior court sentenced him as a repetitive offender to a presumptive term
of 10 years’ imprisonment. This court affirmed the conviction and sentence
on appeal. State v. Patton, 1 CA-CR 13-0056, 2014 WL 1493345 (Ariz. App.
Apr. 15, 2014) (mem. decision).

¶3            Patton timely filed a petition for post-conviction relief raising
a claim of ineffective assistance of counsel. Patton argued that his trial
counsel was ineffective in agreeing with the trial court’s ruling that
severance of the misconduct involving weapons count would be contingent
on Patton’s decision to testify. The superior court summarily dismissed the
post-conviction proceedings, ruling that Patton failed to state a colorable
claim of ineffective assistance of counsel and noting that any direct
challenge to the severance ruling was waived and precluded because
Patton did not raise it on direct appeal. This petition for review followed.

¶4            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). In short, the court may summarily
dismiss a petition that fails to state a colorable claim for relief. State v.
Kolmann, 239 Ariz. 157, 160, ¶ 8 (2016). A colorable claim is one that, if the
allegations are true, would probably have changed the outcome. State v.
Amaral, 239 Ariz. 217, 219–20, ¶ 10 (2016). A colorable claim of ineffective
assistance of counsel requires showing, in light of the entire record, both


                                      2
                            STATE v. PATTON
                            Decision of the Court

that counsel’s performance fell below objectively reasonable standards and
that counsel’s deficient performance prejudiced the defendant. Strickland v.
Washington, 466 U.S. 668, 687 (1984); State v. Lemieux, 137 Ariz. 143, 146
(App. 1983). We review dismissal of a petition for post-conviction relief for
an abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006).

¶5              Here, Patton failed to show either prong necessary to support
a claim of ineffective assistance of counsel. Trial counsel’s motion to sever
the misconduct involving weapons count properly argued that Patton
would be prejudiced with respect to the other charges against him if the
State presented evidence of his prior convictions to prove he was a
prohibited possessor. See State v. Burns, 237 Ariz. 1, 14–15, ¶¶ 34–37, 39
(2015). The trial court ruled—and trial counsel agreed—that the State
would not be able to proceed on the misconduct involving weapons count
(effectively granting the motion to sever) unless Patton testified, which
would render his prior convictions relevant and admissible for
impeachment purposes. Cf. id. at 14, ¶ 35. Because Patton later elected to
testify at trial, his prior convictions were introduced to impeach him, and
the State was then permitted to proceed on the misconduct involving
weapons charge.

¶6            The superior court did not err by concluding trial counsel’s
agreement with the trial judge’s proposed course of action did not reflect
deficient performance. The trial court has wide discretion regarding
joinder and severance of charges as well as the order of trial. State v. Perez,
141 Ariz. 459, 462 (1984); State v. Spratt, 126 Ariz. 184, 187 (App. 1980). The
court’s severance ruling recognized and addressed the potential prejudice
to Patton should his otherwise-inadmissible prior convictions be
introduced during trial on the other offenses. See Burns, 237 Ariz. at 15, ¶
39. And conditioning re-joinder of the misconduct involving weapons
count on whether Patton’s prior convictions became admissible for other
purposes—thus eliminating any additional prejudice from using the prior
convictions to show prohibited possessor status—was within the court’s
considerable discretion. See Hedlund v. Sheldon, 173 Ariz. 143, 146 (1992)
(“[T]rial judges have inherent power and discretion to adopt special,
individualized procedures designed to promote the ends of justice in each
case that comes before them.”) (citation omitted). Because the court’s ruling
fully resolved Patton’s claim of prejudice, trial counsel’s acceptance of the
court’s ruling did not constitute deficient performance. See State v. Pandeli,
242 Ariz. 175, 185, ¶ 33 (2017).

¶7            Furthermore, Patton has not demonstrated prejudice
resulting from counsel’s actions in this regard. The prejudice inherent in


                                      3
                            STATE v. PATTON
                            Decision of the Court

the presentation of evidence of prior convictions in a non-severed trial
primarily relates to the non-severed counts for which that evidence would
not otherwise be admissible. See Burns, 237 Ariz. at 15, ¶ 37 (concluding
that severance was necessary when a prior conviction “was prejudicial and
irrelevant to the other charges”) (emphasis added). And here, Patton was
acquitted of the other charges, so he cannot show prejudice as to those
charges. Moreover, because Patton testified at trial, his prior convictions
became relevant and admissible—even as to the other counts—as
impeachment evidence, see Ariz. R. Evid. 609(a)(1), thereby removing any
grounds for severing the misconduct involving weapons count. See Ariz.
R. Crim. P. 13.4(a). Further use of the already-admitted prior convictions
to prove prohibited possessor status thus did not inject otherwise
precluded prejudicial material. Although Patton posits that, if outright
severance had been granted, the State might have offered a more favorable
plea deal for the misconduct involving weapons charge following his
acquittal of the other charges, such proposed prejudice is speculative at
best. See State v. Rosario, 195 Ariz. 264, 268, ¶ 23 (App. 1999) (noting that a
colorable claim of ineffective assistance of counsel must be based on
something more than “mere speculation”).

¶8            Accordingly, we grant review but deny relief.




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




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