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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               MICHAEL CHARLES JOHNSON, Petitioner.

                         No. 1 CA-CR 15-0312 PRPC
                             FILED 6-22-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2010-162554-001
                  The Honorable Dawn M. Bergin, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By E. Catherine Leisch
Counsel for Respondent

Michael Charles Johnson, Tucson
Petitioner



                       MEMORANDUM DECISION

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

D O W N I E, Judge:

¶1            Michael Charles Johnson petitions for review from the
dismissal of his petition for post-conviction relief filed pursuant to Arizona
Rule of Criminal Procedure 32 (“Rule 32”). For the following reasons, we
grant review but deny relief.

¶2           A jury found Johnson guilty of theft of means of
transportation, a class 3 felony. The trial evidence established that Johnson
was removing parts off a stolen truck to sell them when he was confronted
by police and arrested. The court found Johnson had two prior felony
convictions and sentenced him to an exceptionally mitigated 7.5-year
prison term. On direct appeal, this Court affirmed Johnson’s conviction
and sentence. State v. Johnson, 1 CA-CR 11-0824, 2013 WL 2145991 (Ariz.
App. May 2, 2013) (mem. decision).

¶3            Johnson filed a notice of post-conviction relief, asserting
claims of ineffective assistance of trial counsel. Assigned counsel was
unable to find any viable Rule 32 issues, and Johnson timely filed an in
propria persona petition for post-conviction relief. He argued trial counsel
was ineffective: (1) while delivering her opening statement and closing
argument; (2) by failing to investigate and subpoena witnesses; (3) for
failing to request a lesser-included jury instruction; and (4) by failing to
“initially identify and press notice of mistake of charge.” Johnson also
argued the State improperly “suppressed evidence” when the prosecutor
objected on hearsay grounds during Johnson’s questioning of the arresting
officer. Johnson further asserted the verdict was contrary to the weight of
evidence, and that the State “abused its power by prejudicing [Johnson]
because of his unrelated priors and charging him.”

¶4           The superior court dismissed the petition, finding that
Johnson failed to raise a colorable claim. This timely petition for review
followed.

¶5             “We will not disturb a trial court’s ruling on a petition for
post-conviction relief absent a clear abuse of discretion.” State v. Swoopes,
216 Ariz. 390, 393, ¶ 4 (App. 2007). We will uphold the trial court if the
result is legally correct for any reason. State v. Perez, 141 Ariz. 459, 464
(1984); State v. Cantu, 116 Ariz. 356, 358 (App. 1977).

¶6           On review, Johnson argues he was entitled to an evidentiary
hearing in superior court. He asserts trial counsel was ineffective by not




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                            STATE v. JOHNSON
                            Decision of the Court

conducting a “follow-up” investigation with the manager of the apartment
complex from which Johnson arranged to have a stolen truck towed.

¶7            “The purpose of an evidentiary hearing in the Rule 32 context
is to allow the court to receive evidence, make factual determinations, and
resolve material issues of fact.” State v. Gutierrez, 229 Ariz. 573, 579, ¶ 31
(2012). A Rule 32 petitioner is entitled to an evidentiary hearing if he
presents a colorable claim. State v. D’Ambrosio, 156 Ariz. 71, 73 (1988). A
colorable claim is one that, if the allegations are true, might have changed
the outcome. State v. Runningeagle, 176 Ariz. 59, 63 (1993).

¶8             To state a colorable claim of ineffective assistance of counsel,
a defendant must demonstrate 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);
State v. Nash, 143 Ariz. 392, 397 (1985). To show prejudice, a defendant must
establish 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. Strategic choices made after
adequate investigation of the law and facts “are virtually unchallengeable.”
Id. at 690–91.

¶9             The record belies Johnson’s assertion of trial counsel’s
ineffectiveness. At sentencing, counsel explained that she did speak with
the apartment manager, who denied giving Johnson permission to take the
truck. See State v. Lemieux, 137 Ariz. 143, 146 (App. 1983) (court views
petition’s allegations in light of the entire record to determine if a claim is
colorable). Moreover, in an affidavit attached to the petition for post-
conviction relief, Johnson avowed:

       Management of said apartment complex wrote a detailed
       letter of credence explaining their honest knowledge of said
       truck. [T]he defendant, Johnson took said letter and gave it to
       [his] attorney . . . to use as exculpatory evidence conveying
       defendant’s innocen[ce]. Nowhere in court proceedings did
       [Johnson’s] attorney ever introduce, mention or follow up on
       said letter which would have unequivocally undoubtedly
       cleared Johnson of all charges.

¶10           Johnson did not, however, describe the alleged “exculpatory
evidence” in the letter. He did not, for example, avow that the letter
contained a statement by the manager admitting that he informed Johnson



                                      3
                            STATE v. JOHNSON
                            Decision of the Court

the truck was abandoned and that he could tow it from the apartment
complex property. The mere assertion that the letter purportedly given to
counsel was “exculpatory” did not create a material fact that entitled
Johnson to an evidentiary hearing. See State v. Borbon, 146 Ariz. 392, 399
(1985) (trial court need not conduct an evidentiary hearing based on
generalized and unsubstantiated claims of ineffective assistance of
counsel); State v. McDaniel, 136 Ariz. 188, 198 (1983) (ineffective assistance
of counsel must be a demonstrable reality rather than a matter of
speculation), abrogated on other grounds by State v. Walton, 159 Ariz. 571
(1989); State v. Wilson, 179 Ariz. 17, 20 (App. 1993) (defendant’s self-serving
assertions in affidavit are generally insufficient to raise a colorable Rule 32
claim); see also Gallego v. McDaniel, 124 F.3d 1065, 1077 (9th Cir. 1997) (an
alleged failure to investigate does not meet the prejudice prong when
defendant does not explain what evidence additional investigation would
have disclosed and how it might have changed the outcome).

¶11             Johnson also argues his attorney should have subpoenaed the
manager to testify at trial. Johnson, however, did not provide in his petition
the potential witness’s name, and he did not include an affidavit that
contained the testimony the witness would have offered.1 See Borbon, 146
Ariz. at 399 (failure to indicate names of witnesses and include affidavits
about testimony they would have offered is fatal to a claim of ineffective
assistance of counsel). Additionally, “the decision as to what witnesses to
call is a tactical, strategic decision.” State v. Lee, 142 Ariz. 210, 215 (1984).
“[T]he power to decide questions of trial strategy and tactics rests with
counsel.” Id.



1     In addition to the affidavit noted in ¶ 9, Johnson attached an affidavit
in which he avowed that he told the arresting officer:

       I did not know the truck was stolen. I told [the officer] that I
       got the truck from an apartment complex . . . that an
       apartment manager was going to have a truck towed that was
       abandon[ed] on his property and since the manager knew I
       was looking for a truck just like that one I could have it so he
       wouldn’t have to put up the cost of towing. So I called the
       tow truck that the apartment manager gave me . . . .

This avowal attests to Johnson’s potential testimony, not the apartment
manager’s.




                                       4
                           STATE v. JOHNSON
                           Decision of the Court

¶12           Johnson next argues the prosecutor committed a Brady2
violation by successfully objecting to hearsay testimony during Johnson’s
cross-examination of the arresting officer. We disagree. Johnson does not
cite relevant legal authority to support the proposition that seeking to
exclude inadmissible evidence amounts to an unconstitutional
nondisclosure of that evidence. Johnson also fails to cite to the trial record
as required. See Ariz. R. Crim. P. 32.9(c)(1)(iv) (A Petition for review must
contain “[t]he reasons why the petition should be granted” and either an
appendix or “specific references to the record,” but “shall not incorporate
any document by reference, except the appendices.”). In any event, this
claim was precluded, as it could have been raised on direct appeal. Ariz.
R. Crim. P. 32.2(a).

¶13           Finally, Johnson contends the verdict was contrary to the
weight of the evidence. He argues the State failed to prove beyond a
reasonable doubt that he knew the truck was stolen, and “no one is accusing
the defendant[] that he is the one who actually stole the vehicle.” This claim
was also precluded because it could have been raised on direct appeal. And
on direct appeal, this Court held that the trial evidence was sufficient to
sustain Johnson’s conviction. Johnson, 1 CA-CR 11-0824, 2013 WL 2145991,
at *2, ¶ 12.




2      Brady v. Maryland, 373 U.S. 83, 87 (1963) (“[T]he suppression by the
prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”).


                                      5
                          STATE v. JOHNSON
                          Decision of the Court

                             CONCLUSION

¶14          The superior court did not abuse its discretion by dismissing
Johnson’s petition. We therefore grant review but deny relief. We deny
Johnson’s “Motion to Judicate” as moot.




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




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