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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 EDMUND VINCENT POWERS, Petitioner.

                         No. 1 CA-CR 19-0069 PRPC
                              FILED 12-12-2019


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2014-101230-001 SE
                 The Honorable Sherry K. Stephens, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Andrea L. Kever
Counsel for Respondent

Edmund Vincent Powers, Buckeye
Petitioner


                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Michael J. Brown joined.
                             STATE v. POWERS
                            Decision of the Court

W I N T H R O P, Judge:

¶1            Edmund Vincent Powers petitions this court for review of 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.

                 FACTS AND PROCEDURAL HISTORY

¶2           Powers pled guilty to three counts of armed robbery, two
counts of unlawful flight from law enforcement, and one count of
aggravated driving while under the influence of intoxicating liquor or
drugs (“DUI”). In exchange for his plea, the State dismissed, inter alia,
numerous felony charges, including two counts of misconduct involving
weapons. The superior court sentenced Powers to consecutive and
concurrent prison terms totaling twenty-six years.

¶3            Powers timely initiated a proceeding for post-conviction
relief, and the superior court appointed counsel to represent him. After
reviewing the record and correspondence from Powers, assigned counsel
stated he could find no colorable claims to pursue, except a potential issue
regarding Powers’ DUI sentence. Powers filed a pro per petition for relief,
and the court concluded he should be resentenced on the DUI count and
receive additional credit for time served. The court summarily dismissed
Powers’ other claims, leading to our review.1




1       After the superior court resentenced Powers on the DUI conviction,
he initiated a Rule 32 proceeding challenging the resentencing. Appointed
counsel filed a petition for post-conviction relief from the DUI sentence
approximately one month after Powers filed his petition for review in this
court. Powers then requested permission to supplement his petition for
review with claims regarding his DUI resentencing, lest those claims later
be deemed precluded. We granted Powers’ request with the proviso that
we expressed no opinion whether the supplemental claims were properly
before us on review. Upon further consideration, we conclude that Powers’
resentencing claims are not properly before us, and we therefore decline to
address them. Because Powers asked this court to review his resentencing
claims before the superior court considered the underlying petition for
relief, Powers’ request to this court is premature. See Ariz. R. Crim. P.
32.9(c)(1)(A), (4)(B).


                                      2
                             STATE v. POWERS
                            Decision of the Court

                                 ANALYSIS

¶4            We review the superior court’s decision for an abuse of
discretion. State v. Amaral, 239 Ariz. 217, 219, ¶ 9 (2016).

¶5            Most of Powers’ claims on review relate to the weapon
involved in the charged offenses—a taser. Powers argues the State had no
basis for bringing misconduct involving weapons charges in the first place
because a taser is not a “deadly weapon.”2 Related to that contention,
Powers argues the superior court should have taken action against the
prosecutor for improperly presenting the weapons counts to the grand jury.
We find no abuse of discretion in the court’s rejection of these claims.
Because the State dismissed the misconduct involving weapons counts,
Powers has no grounds for challenging the grand jury’s determination of
probable cause for those charges. Although the alleged misconduct of the
prosecutor or the court might potentially form the basis of professional
ethics complaints, the allegations do not support relief under Rule 32.1.

¶6            Powers also argues he did not voluntarily plead guilty to
armed robbery because he never admitted the taser was a “simulated
deadly weapon” or “dangerous instrument.”3 The record belies Powers’
claim, showing he understood the elements of the armed robbery charges
against him and admitted to facts establishing those elements. See Bradshaw
v. Stumpf, 545 U.S. 175, 182-83 (2005); McCarthy v. United States, 394 U.S. 459,
466 (1969), superseded on other grounds by rule, Fed. R. Crim. P. 11(h), as
recognized in United States v. Cross, 57 F.3d 588, 591 (7th Cir. 1995). Despite
later expressing reservations about whether sparking a taser could render
it a “dangerous instrument,” Powers unequivocally declined to withdraw
from the plea after being given multiple opportunities to do so.

¶7            Powers also argues his attorney provided constitutionally
defective assistance by (1) failing to inform him of the elements of armed
robbery, (2) not earlier challenging the misconduct involving weapons


2       The State alleged Powers committed misconduct involving weapons
by possessing “a deadly weapon” as “a prohibited possessor.” See Ariz.
Rev. Stat. (“A.R.S.”) § 13-3102(A)(4). A “[d]eadly weapon” is “anything
that is designed for lethal use.” A.R.S. § 13-3101(A)(1).

3     A person commits armed robbery by committing a robbery (1) while
“armed with a deadly weapon or a simulated deadly weapon” or (2)
through the use or threatened use of “a deadly weapon or dangerous
instrument or a simulated deadly weapon.” A.R.S. § 13-1904.


                                       3
                             STATE v. POWERS
                            Decision of the Court

counts, and (3) refusing to request a determination of Powers’ competency.
To merit an evidentiary hearing on an ineffective assistance claim, “a
defendant must show both that counsel’s performance fell below
objectively reasonable standards and that this deficiency prejudiced the
defendant.” State v. Bennett, 213 Ariz. 562, 567, ¶ 21 (2006) (citing Strickland
v. Washington, 466 U.S. 668, 687 (1984), superseded by statute on other grounds,
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,
110 Stat. 1214 (1996)). Failing to establish either prong bars relief, id., and
courts may dispose of a claim for lack of prejudice without first evaluating
counsel’s performance, Strickland, 466 U.S. at 697. We find no abuse of
discretion in the superior court’s summary dismissal of these claims.

¶8            As described above, the record shows Powers understood the
elements of armed robbery when he pled guilty. Even if he learned those
elements from someone other than his attorney, he fails to show his
attorney’s performance caused him prejudice. See Strickland, 466 U.S. at 694
(holding that prejudice requires showing “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different”).

¶9             Nor does Powers demonstrate prejudice on account of his
attorney’s failure to obtain an earlier dismissal of the misconduct involving
weapons charges. Powers offers no support for his proposition that he
would have received a better plea deal had those charges been dismissed
earlier, or never brought in the first place.4

¶10            We also find no abuse of discretion in the superior court’s
rejection of Powers’ claim that his counsel should have requested a
competency determination. Trial courts have a duty to order a Rule 11
examination “if there is sufficient evidence to indicate that the defendant is
not able to understand the nature of the proceedings against him and to
assist in his defense.” State v. Salazar, 128 Ariz. 461, 462 (1981) (citations
omitted); see also Ariz. R. Crim. P. 11.1(a)(2), (b). Defense counsel has a duty
to assist the court in reaching a competency decision. Bishop v. Superior
Court, 150 Ariz. 404, 408 (1986).

¶11          The record demonstrates that Powers’ attorney understood
his obligation to move for a competency examination if warranted,


4     The record shows that when the State extended its plea offer to
Powers, it did so with an awareness that its case was vulnerable to
arguments the taser was not a “deadly weapon” or “dangerous
instrument.”


                                       4
                           STATE v. POWERS
                          Decision of the Court

considered the need for such an examination, and reasonably determined
there was no good faith basis for requesting an examination. Powers fails
to establish a colorable claim of ineffective assistance under the
circumstances.

                              CONCLUSION

¶12          Accordingly, we grant review but deny relief.




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




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