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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               FREDERICK DOUGLAS SMOOTS, Petitioner.

                         No. 1 CA-CR 15-0644 PRPC
                                FILED 5-16-17


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2011-128357-001
              The Honorable Brian Kaiser, Judge Pro Tempore

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Lisa Marie Martin
Counsel for Respondent

Frederick Douglas Smoots, Tucson
Petitioner
                             STATE v. SMOOTS
                            Decision of the Court




                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kenton D. Jones and Judge Donn Kessler joined.


D O W N I E, Judge:

¶1           Frederick Douglas Smoots petitions for review from the
dismissal of his petition for post-conviction relief. For the following
reasons, we grant review but deny relief.

                 FACTS AND PROCEDURAL HISTORY

¶2            In 2012, a jury convicted Smoots of misconduct involving
weapons, a class 4 felony and repetitive offense. Smoots was sentenced to
nine years in prison. After Smoots filed a notice of appeal, this Court
conducted a review pursuant to Anders v. California, 386 U.S. 738 (1967), and
affirmed his conviction and sentence. See State v. Smoots, 1 CA-CR 13-0016,
2013 WL 6567754 (Dec. 12, 2013) (mem. decision).

¶3            In 2014, Smoots filed a petition for post-conviction relief. The
superior court summarily dismissed the petition, and Smoots timely sought
our review. We will reverse the summary dismissal order only if an abuse
of discretion affirmatively appears from the record. State v. Watton, 164
Ariz. 323, 325 (1990).

¶4             Smoots’ petition for review renews three arguments of
ineffective assistance of counsel made in the superior court: (1) trial counsel
was ineffective by failing to explain the rule of law relating to constructive
possession; (2) trial counsel was ineffective by failing to adequately explain
the merits of entering into a plea offer versus the possible exposure Smoots
faced if he proceeded to trial, where his prior felony convictions would be
introduced; and (3) trial counsel was ineffective by failing to inform Smoots
of a ruling precluding evidence about a prior excessive force incident.

¶5            Ineffective assistance of counsel that causes a defendant to
reject a favorable plea and proceed to trial is a cognizable claim. State v.
Donald, 198 Ariz. 406, 413, ¶ 14 (App. 2000). However, a petitioner must
demonstrate a “reasonable probability” that, but for counsel's



                                      2
                            STATE v. SMOOTS
                           Decision of the Court

unprofessional errors, the result would have been different. Strickland v.
Washington, 466 U.S. 668, 694 (1984). The burden is on a petitioner seeking
post-conviction relief to establish ineffective assistance of counsel, which
must be based on “provable reality, not mere speculation.” State v. Rosario,
195 Ariz. 264, 268, ¶ 23 (App. 1999).

¶6             “Surmounting Strickland’s high bar is never an easy task.”
Padilla v. Kentucky, 559 U.S. 356, 371 (2010). To raise a colorable claim of
ineffective assistance of counsel, Smoots must establish both that trial
counsel’s performance fell below an objectively reasonable professional
standard and that the deficient performance prejudiced his defense. See
Strickland, 466 U.S. at 687; State v. Nash, 143 Ariz. 392, 397 (1985). Smoots’
petition fails on both prongs.

¶7            Smoots has demonstrated neither that trial counsel’s
performance was deficient as to the constructive possession issue nor that
his lawyer’s legal advice on this point caused him prejudice. At trial,
Smoots admitted knowing he was “not supposed to have a firearm” or “be
around a firearm.” Smoots was aware the gun was in his car, was
“observed moving something from the passenger side to the driver’s side,
where the handgun was found,” and told a detective that “the gun under
my seat” belonged to a friend. Smoots, 2013 WL 6567754, at *2, ¶ 11. Under
these circumstances, Smoots can demonstrate no prejudice flowing from
the alleged failure of trial counsel to more fully explain the doctrine of
constructive possession.1

¶8            In terms of Smoots’ prior convictions, not only were they
discussed at a settlement conference Smoots attended, but the State was
obligated to prove at least one prior conviction in order to satisfy the
statutory elements of the charged offense. At the settlement conference,
Smoots was told of the State’s plea offer and the sentencing range he faced
if he was found guilty. Smoots made the decision to reject the offer.
Further, at the settlement conference, the State alerted Smoots to the fact it
would seek to prove his prior convictions. Then, at trial, the court held a
discussion regarding the relevance and probative value of proving all of
Smoots’ prior convictions, weighed against the prejudicial value of proving




1     As the superior court noted, Smoots raised a related issue regarding
defense counsel’s alleged failure to advise him that his DNA was not found
on the gun. But a conviction based on constructive possession can occur
without Smoots actually touching the firearm.


                                      3
                             STATE v. SMOOTS
                            Decision of the Court

more than one prior. The court permitted the State to prove — in sanitized
fashion — only the two most recent felony convictions.

¶9            Finally, regarding Smoots’ claim that his lawyer was
ineffective because she did not raise his prior excessive force claim, the
record indicates Smoots discussed this issue at the settlement conference.
And at trial, defense counsel attempted to elicit testimony about the 2009
incident when questioning Smoots. The court, however, sustained the
State’s relevance objection. Smoots has not demonstrated that the court
would have ruled differently had his lawyer filed a motion or conducted
additional investigation into that incident.

¶10             Smoots not only has failed to demonstrate that his counsel’s
representation was deficient, but he has failed to establish the requisite
prejudice stemming from any allegedly ineffective assistance. A petitioner
must demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. Further, defense
counsel’s errors must be “so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.” Id. at 687. No such errors are apparent
from this record.

                               CONCLUSION

¶11           For the foregoing reasons, we grant review but deny relief.




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

                                         4
