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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

             GEORGE DENTON WEATHERFORD, Petitioner.

                         No. 1 CA-CR 13-0768 PRPC
                              FILED 9-22-2015


             Appeal from the Superior Court in Pima County
               No. CR20092354-001 and CR20094105-001
                The Honorable Jane L. Eikleberry, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Pima County Attorney’s Office, Tucson
By Barbara LaWall
Counsel for Respondent

Higgins & Higgins, P.C., Tucson
By Harold L. Higgins, Jr.
Counsel for Petitioner
                        STATE v. WEATHERFORD
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Patricia A. Orozco and Judge Maurice Portley joined.



D O W N I E, Judge:

¶1            George Weatherford seeks review of the dismissal of his
petition for post-conviction relief. For the following reasons, we grant
review but deny relief.

¶2             A jury found Weatherford guilty of four counts of aggravated
driving under the influence (“DUI”), two counts each of criminal damage
and endangerment and one count each of unlawful flight, first degree
burglary, and theft. As part of that same proceeding, the trial court found
Weatherford guilty of two counts of misconduct involving weapons. The
court sentenced Weatherford to an aggregate term of 63.25 years’
imprisonment, and we affirmed his convictions and sentences on direct
appeal. Weatherford now seeks review of the summary dismissal of his
first petition for post-conviction relief. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 13-4239(C) and Arizona Rule of
Criminal Procedure 32.9(c).

¶3           Weatherford presents three ineffective assistance of counsel
claims, arguing: (1) his pretrial attorney was ineffective in requesting
consolidation; (2) trial counsel was ineffective by failing to interview
witnesses, and (3) trial counsel was ineffective by not demanding that the
jury determine whether he committed the offenses while on community
supervision for a prior felony conviction.

¶4             “Defendants are not guaranteed perfect counsel, only
competent counsel.” State v. Valdez, 160 Ariz. 9, 15 (1989), abrogated on other
grounds by Krone v. Hotham, 181 Ariz. 364 (1995). To state a colorable claim
of ineffective assistance of counsel, 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). If a defendant fails to make a sufficient showing of
either prong of this test, the trial court need not determine whether the
other prong has been satisfied. State v. Salazar, 146 Ariz. 540, 541 (1985).



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                         STATE v. WEATHERFORD
                           Decision of the Court

¶5             To demonstrate prejudice, a defendant must show 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. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. “[T]he showing must be that of a provable
reality, not mere speculation.” State v. Rosario, 195 Ariz. 264, 268, ¶ 23 (App.
1999). There is a strong presumption that counsel’s actions constitute sound
trial strategy. State v. Stone, 151 Ariz. 455, 461 (App. 1986). “Defense
counsel’s determinations of trial strategy, even if later proven unsuccessful,
are not ineffective assistance of counsel.” Valdez, 160 Ariz. at 15.

¶6            Weatherford argues his pretrial lawyer was ineffective
because she moved to consolidate the case with the burglary and theft
charges (“the burglary case”) with the case involving the remaining counts
(“the DUI case”). The trial court had set both cases for trial, with the DUI
trial taking place the week after the trial in the burglary case. Defense
counsel moved to continue both trials and also to consolidate the trials
under Rule 13.3. She argued the cases were “based on the same conduct or
are otherwise connected together in their commission” and that all of the
events took place on the same day; officers investigating the DUI case found
items taken in the burglary; and “[m]uch [of] the same evidence is going to
be presented in each case.” Finally, counsel argued consolidation would
promote judicial economy and shorten the total time needed to try all of the
charges. The trial court granted the requests to continue and consolidate.

¶7            Weatherford argues that, from a defense perspective, there
was no valid reason to seek consolidation and that consolidation led to the
jury hearing highly prejudicial evidence from the DUI case that would not
have been admitted at a separate trial of the burglary case, including: (1)
his flight from law enforcement; (2) his agitation, aggressiveness, and
profanity when arrested in the DUI case; (3) his blood alcohol
concentration; (4) his two prior DUI convictions and the fact he was driving
on a suspended license; and (5) his disturbance of the peace at a
“gentlemen’s club,” where he was asked to leave shortly before the events
underlying the DUI case.

¶8             We find no abuse of discretion in the trial court’s
determination that seeking to consolidate the trials did not constitute
ineffective assistance of counsel. “[I]n the interest of judicial economy, joint
trials are the rule rather than the exception.” State v. Van Winkle, 186 Ariz.
336, 339 (1996). The trial court ruled that defense counsel’s reasons for
moving to consolidate were valid, noted that all of the offenses occurred on



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                         STATE v. WEATHERFORD
                           Decision of the Court

the same day, and specifically found that “much of the same evidence
would have been admissible had the cases been tried separately.”

¶9             Even if defense counsel’s consolidation request fell below
objectively reasonable standards, Weatherford failed to demonstrate the
requisite prejudice. See Strickland, 466 U.S. at 687. Although the evidence
he identifies may have been prejudicial, he has not established that it was
so unfairly prejudicial that it denied him a fair trial. The judge who ruled
on Weatherford’s petition for post-conviction relief presided over his trial
and was thus well-equipped to determine whether any prejudice arose
from consolidation. And the record suggests no reasonable probability that
a separate trial in the burglary case would have produced a different
outcome. The burglary took place only hours before the DUI-related
offenses; investigators found property from the burglary in the vehicle
Weatherford was driving at the time of his DUI arrest, and Weatherford’s
DNA profile matched blood found at the burglary scene. Furthermore, the
court instructed the jury that each count was a separate and distinct offense;
that it must decide each count separately and based only on the evidence
and law related to that count; and that its decision on any count could not
influence its decision on any other count. The court also gave an instruction
that limited consideration of the prior DUIs to the question of whether
Weatherford had two prior DUIs. We presume that jurors follow their
instructions. State v. Dunlap, 187 Ariz. 441, 461 (App. 1996).

¶10            Weatherford next argues trial counsel was ineffective by
failing to interview prosecution witnesses before trial. His only specific
substantive argument, though, is about the failure to interview
investigators in the burglary case, and then only in the context of the DNA
evidence.

¶11           Investigators initially failed to notice a blood stain on the wall
of the residence where the burglary occurred. It was only after the
homeowner contacted police that an investigator returned to the scene days
later and obtained a sample of the blood. Weatherford argues that by
failing to interview the investigators, his trial attorney missed the
opportunity to discredit the DNA evidence and raise questions about how
and when the blood came to be in the residence. The trial court, however,
determined that defense counsel “thoroughly and effectively” cross-
examined the witnesses at trial and made clear to the jury that investigators
failed to find the blood stain during their initial investigation. The court
concluded:




                                       4
                         STATE v. WEATHERFORD
                           Decision of the Court

       The State’s evidence was overwhelming, and there is no
       reason to think that pre-trial interviews would have bolstered
       cross-examination in any way. Petitioner’s DNA was found
       on the burglary victim’s wall, and a gun stolen from her home
       was found in Petitioner’s vehicle on the same day her home
       was burglarized.

¶12            We again find no abuse of discretion. Defense counsel had
the investigative reports and made it abundantly clear through cross-
examination that investigators missed what presumably was an obvious
blood stain on the wall when they examined the residence on the date of
the incident. Defense counsel stressed this issue in closing argument and
suggested there was no evidence the blood was even present during the
initial investigation. Whether pretrial interviews would have revealed
additional grounds for attacking the DNA evidence is wholly speculative.
Under these circumstances, Weatherford has failed to show that counsel’s
performance fell below objectively reasonable standards or that he suffered
corresponding prejudice.

¶13          Finally, shortly after the jury returned its verdicts, the parties,
without objection, tried the issue of Weatherford’s release status to the
court. The court found that Weatherford committed the offenses while on
community supervision for a prior felony conviction, which made the
presumptive sentence the minimum sentence the court could impose for
each count. A.R.S. § 13-604.02(B) (2008).1

¶14           Weatherford argues counsel was ineffective in not
demanding that the jury determine his release status. We agree that
Weatherford’s release status was a matter for the jury absent a valid waiver.
Any fact, other than the fact of a prior conviction, that increases the
prescribed statutory minimum penalty must be submitted to a jury and
proved beyond a reasonable doubt. Alleyne v. United States, 133 S. Ct. 2151,
2160 (2013); State v. Large, 234 Ariz. 274, 278, ¶ 12 (App. 2014). This includes
a defendant’s release status because it makes the presumptive sentence the
prescribed statutory minimum sentence. Large, 234 Ariz. at 279-80, ¶¶ 13-
16. Even so, Weatherford has not demonstrated the requisite prejudice.
The State proved his release status with an Arizona Department of
Corrections “pen pack” and established that Weatherford began a term of

1      Although Weatherford cites A.R.S. § 13-708(C), the version of A.R.S.
§ 13-708 that includes this provision did not become effective until January
1, 2009. Weatherford committed the offenses on July 3, 2008. Therefore,
A.R.S. § 13-604.02(B) (2008) is the applicable statute.


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                      STATE v. WEATHERFORD
                        Decision of the Court

community supervision approximately two months before he committed
the instant offenses. No reasonable juror could have found Weatherford
was not on community supervision when he committed the instant
offenses. As a result, no prejudice arises from the failure to submit the
question to the jury. See id. at 280, ¶ 19.

                            CONCLUSION

¶15          For the reasons stated, we grant review but deny relief.




                                :ama




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