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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 THOMAS FORREST BOLTON, Petitioner.

                         No. 1 CA-CR 18-0621 PRPC
                              FILED 3-26-2019


     Petition for Review from the Superior Court in Yavapai County
                         No. P1300CR201300942
                   The Honorable Tina R. Ainley, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Yavapai County Attorney’s Office, Prescott
By Dana E. Owens
Counsel for Respondent

Thomas Forrest Bolton, Kingman
Petitioner
                           STATE v. BOLTON
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge James P. Beene and Judge James B. Morse Jr. joined.


B R O W N, Judge:

¶1            Thomas Bolton petitions for review from the denial of his
petition for post-conviction relief (“PCR”) filed pursuant to Arizona Rule of
Criminal Procedure (“Rule”) 32.1. Having considered the petition, we
grant review but deny relief.

                             BACKGROUND

¶2            Following a jury trial, Bolton was convicted of one count of
sexual assault (victim A.F.), one count of kidnapping (victim A.F.), and two
counts of selling or furnishing spirituous liquor to underage persons
(victims A.F. and J.B.). The jury also found two aggravating factors, and
the superior court sentenced Bolton to an aggregate term of 14 years’
imprisonment.

¶3             As part of his Anders appeal, Bolton filed a pro per
supplemental brief, arguing (1) he was improperly forced to wear a
restraining device during trial; (2) the State failed to disclose that a key
witness had received favorable treatment in exchange for his testimony; (3)
DNA evidence should have been precluded due to improper collection,
testing, and chain of custody; (4) emotional harm is an inherent element of
sexual assault and the superior court could not use it as an aggravating
factor; and (5) his former attorney improperly failed to oppose preclusion
of A.F.’s prior sexual conduct and present a witness Bolton requested. State
v. Bolton, 1 CA-CR 15-0432, 2016 WL 6081752, at *1, ¶ 2 (Ariz. App. Oct. 18,
2016) (mem. decision). We vacated one of the counts of furnishing
spirituous liquor to a minor as to A.F., which the State conceded lacked
sufficient evidence, but affirmed the other convictions. Id. at *2, ¶ 9.
Although we resolved Bolton’s first four claims, finding they lacked merit,
we concluded his fifth argument amounted to a claim of ineffective
assistance of counsel, reviewable in a Rule 32 proceeding only. Id. at *2–3,
¶¶ 10–18.




                                     2
                              STATE v. BOLTON
                              Decision of the Court

¶4           Bolton then timely filed a PCR. Proceeding pro per, he
asserted that both trial and appellate counsel were ineffective, the
prosecutor engaged in misconduct, and the superior court committed
numerous trial errors. The court denied the PCR, and this petition for
review followed.

                                  DISCUSSION

¶5             Absent an abuse of discretion or error of law, we will not
disturb a superior court’s ruling on a petition for post-conviction relief.
State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). Bolton bears the burden of
showing the court abused its discretion. See State v. Poblete, 227 Ariz. 537,
538, ¶ 1 (App. 2011).

¶6              Rule 32.2(a) precludes relief for a defendant on any ground
“(1) still raisable on direct appeal . . . or in a post-trial motion . . . (2) finally
adjudicated on the merits in an appeal or in any previous collateral
proceeding; or (3) waived at trial, on appeal, or in any previous collateral
proceeding.” Ariz. R. Crim. P. 32.2(a). However, a Rule 32 proceeding
provides the sole vehicle to raise claims of ineffective assistance of counsel.
State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20 (2007). Bolton’s other
claims that were, or should have been, raised in a direct appeal, are
therefore precluded.1

¶7            We accordingly limit our review to Bolton’s argument that his
trial counsel was ineffective for failing to: (1) present a third-party
culpability defense that A.F.’s boyfriend, J.B., sexually assaulted her; (2)
challenge the victims’ credibility; (3) object to the admission of A.F.’s
testimony regarding prior sexual abuse; (4) request suppression of evidence
seized pursuant to a search warrant; (5) oppose the preclusion of A.F.’s
prior sexual history; and (6) present the testimony of a defense witness. We
also review Bolton’s contention that his appellate counsel was ineffective
by failing to recuse himself based on his supervisory relationship to trial
counsel and to raise any claims on direct appeal.




1       Because Bolton contested both the State’s use of a stun belt restraint
and its procedures for collecting, testing, and maintaining evidence in his
direct appeal, supra ¶ 3, the Rule precludes relief on those grounds.
Similarly, Bolton’s failure to raise issues of prosecutorial misconduct and
trial court error in his direct appeal means the Rule also precludes him from
obtaining relief on those grounds.


                                          3
                           STATE v. BOLTON
                           Decision of the Court

¶8            A defendant’s ineffective assistance of trial counsel claim
must satisfy the two-pronged test articulated in Strickland v. Washington, 466
U.S. 668 (1984). State v. Nash, 143 Ariz. 392, 397 (1985). A colorable “actual
ineffectiveness” claim shows both that counsel’s performance failed to meet
objectively reasonable standards and that this failure prejudiced the
defense. Id. at 397–98. We begin with the “strong presumption” that
counsel’s actions “might be considered sound trial strategy.” Strickland, 466
U.S. at 698 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). “To
overcome this presumption,” a petitioner must show that “counsel’s
decisions were not tactical in nature, but instead were the result of
‘ineptitude, inexperience or lack of preparation.’” State v. Denz, 232 Ariz.
441, 444, ¶ 7 (App. 2013) (citation omitted). If trial counsel’s tactical
decisions had a reasoned basis, simple disagreement over trial strategy
does not suffice to establish the performance prong of Strickland. Id. To
warrant reversal, a defendant must also show “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different,” which, in this context, means “a
probability sufficient to undermine confidence in the outcome.” Strickland,
466 U.S. at 694.

¶9             First, Bolton contends that trial counsel was ineffective by
failing to present a third-party defense that J.B., not Bolton, sexually
assaulted A.F. To support this claim, Bolton cites numerous police reports
he attached to his PCR that document physical altercations J.B. had with
family members, A.F., and others. Each incident occurred after the events
at issue in this trial. And none of the events described in the reports relate
to sexual assault. In fact, one report indicates the incident was precipitated
by J.B.’s rage that Bolton had sexually assaulted A.F. At any rate, the jury
was aware of much of this information because J.B. acknowledged at trial
that he had been convicted of aggravated assault and domestic violence and
was receiving mental health treatment. Bolton’s trial counsel also
highlighted this fact during closing by inviting the jury to consider the
possibility that J.B. was responsible for A.F.’s injuries. Given the limited
relevance of these events, if any, it was a permissible tactical decision for
trial counsel not to press the issue any further.

¶10            Second, Bolton argues that trial counsel was ineffective by
failing to sufficiently challenge the credibility of J.B. and A.F. based on
conflicting testimony. J.B. stated that Bolton gave him alcohol on the day
of the assault, but A.F. said that Bolton’s wife provided alcohol to both J.B.
and herself. Bolton cites our prior decision vacating his misdemeanor as to
A.F. as proof he establishes both prongs of Strickland. But we concluded
there was sufficient evidence to support his other convictions, including the


                                      4
                            STATE v. BOLTON
                            Decision of the Court

misdemeanor as to J.B. Bolton, 2016 WL 6081752, at *3, ¶ 18. Moreover,
although the superior court decided the misdemeanor offenses, the jury
decided the kidnapping and sexual assault charges. Furnishing the victim
with alcohol is not an element of kidnapping or sexual assault. Ariz. Rev.
Stat. §§ 13-1304(A)(3) (kidnapping), -1406(A) (sexual assault). Trial counsel
was not obligated to focus on this issue because doing so might well have
“harmed counsel’s and defendant’s credibility when meritorious matters
were raised.” See State v. Chee, 140 Ariz. 171, 173 (App. 1984). Lastly,
outside this detail about who provided them with alcohol, J.B. and A.F.
generally corroborated each other’s narrative regarding the sexual assault.
On these facts, trial counsel’s decision not to challenge the credibility of
these witnesses further was a permissible strategic choice.

¶11            Third, Bolton contends that trial counsel was ineffective for
failure to object to A.F.’s allegedly irrelevant and prejudicial trial testimony
regarding her prior sexual abuse. At trial, A.F. testified that her father was
imprisoned for molesting her as a young child and explained that her
experience in reporting the abuse to an investigating detective was “scary”
and “very difficult.” When questioned later about her reluctance to report
the sexual assault and cooperate with investigators, A.F. explained she
“didn’t want to feel like a victim again” or endure “the court process”
because she had “already been through that.” Eventually, however, she
relented and participated with the police investigation because she “didn’t
want this to happen to someone else.” During the aggravation phase, A.F.
testified about the emotional trauma she suffered from this incident,
including nightmares and weight loss.

¶12            Counsel’s decision not to object to this testimony is not a close
question under Strickland. The evidence was relevant to explain A.F.’s
initial reluctance to submit to an intrusive physical examination or provide
a full description of the alleged sexual assault to police. Ariz. R. Evid. 401,
402. Although an objection to A.F.’s testimony would not have been
unreasonable, it was also well within trial counsel’s tactical discretion not
to do so. Counsel had sensible reasons not to object to such emotional
testimony, including to avoid drawing additional attention to A.F.’s
sympathetic history or leaving any impression with the jury that Bolton’s
representative was badgering A.F. on a uniquely sensitive topic. See Denz,
232 Ariz. at 445, ¶ 11 (stating that trial counsel’s desire to avoid “unduly
emphasiz[ing] aspects of a case” is a permissible strategic consideration).

¶13          Moreover, most of the testimony that Bolton’s petition takes
issue with concerned A.F.’s emotional harm and occurred during the
aggravation phase. Bolton attacks trial counsel’s decision not to object to


                                       5
                            STATE v. BOLTON
                            Decision of the Court

this testimony as unreasonable because A.F.’s testimony, not based on
scientific or medical knowledge, “provided the jury with an improper
foundation upon which to evaluate emotional harm.” A.F.’s testimony,
though, is the kind typically sanctioned in the aggravation phase, see State
v. Coulter, 236 Ariz. 270, 274, 276, ¶¶ 7, 16 (App. 2014) (describing “emotion”
as “a state of feeling” and partially relying on witness testimony of her
nightmares to uphold an emotional harm finding (citation omitted)), and
counsel’s decision not to object was not objectively unreasonable.

¶14             Fourth, Bolton argues his trial counsel was ineffective because
he failed to move to suppress evidence seized from Bolton’s home pursuant
to a search warrant. Specifically, Bolton contends the warrant was not
supported by probable cause because A.F. and J.B. made inconsistent
statements, Bolton’s wife claimed she was with him the entire evening at
issue, and his stepdaughter stated she did not witness a sexual assault that
night. See Illinois v. Gates, 462 U.S. 213, 238 (1983) (defining probable cause
to search as “a fair probability that contraband or evidence of a crime will
be found in a particular place”). However, a reviewing court would not
have suppressed the evidence unless officers’ reliance on that warrant was
objectively unreasonable. United States v. Leon, 468 U.S. 897, 922 (1984).
Bolton contends that requirement is easily established here because other
officers at trial testified that police initially thought there was no reason to
search his residence because they did not expect to find evidence there. But
what some officers believe at the beginning of a case has little relevance to
whether later investigation reveals sufficient probable cause to support the
issuance of a warrant or whether other officers acted in reasonable reliance
on that warrant. By the time police obtained the warrant, both J.B. and A.F.
had reported that J.B. walked into Bolton’s bedroom and saw him sexually
assaulting A.F. Based on this and other evidence, there was a “fair
probability” that evidence of a crime could be found in Bolton’s home,
particularly for biological evidence on and around Bolton’s bed.

¶15          Furthermore, Bolton acknowledges that, throughout trial, his
counsel raised issues with some of the evidence obtained pursuant to the
warrant and that, in other respects, the evidence was favorable to him “by
reason of there being no DNA match found between A.F. and Petitioner
from the items collected,” a fact his trial counsel seized on during closing
argument. We cannot say trial counsel’s tactical decision not to file a
debatable motion had no reasoned basis.

¶16           Fifth, citing an affidavit attached to his PCR, Bolton asserts
trial counsel was ineffective by failing to call William Pistole as a defense
witness. As reflected in the affidavit, Pistole avowed that A.F. (1) made the


                                       6
                            STATE v. BOLTON
                            Decision of the Court

sexual assault allegations only because J.B. forced her to do so and (2)
recanted the allegations before trial. First, we note that Pistole’s affidavit
was notarized on September 1, 2017, more than two years after the trial in
this case. Absent some evidence that trial counsel was aware of Pistole’s
claims before the jury rendered its verdict, this affidavit, alone, cannot
support a finding of ineffective assistance of counsel. See Strickland, 466 U.S.
at 689 (“A fair assessment of attorney performance requires that every effort
be made . . . to evaluate the conduct from counsel’s perspective at the time.”)
(emphasis added). Second, the reports attached to Bolton’s PCR indicate
that J.B. and Pistole have a history of physical altercations. Even assuming
trial counsel’s timely knowledge of Pistole’s avowals, given the reported
antagonism between J.B. and Pistole, we cannot say that trial counsel’s
purported decision not to call Pistole as a witness was objectively
unreasonable.

¶17           Sixth, Bolton argues trial counsel was ineffective by failing to
oppose the preclusion of A.F.’s sexual history. Although Bolton’s initial
appointed trial counsel failed to challenge the State’s motion to preclude
A.F.’s sexual history, his second trial attorney filed a motion to reconsider.
Thus, because the undisputed evidence reflects that trial counsel challenged
the State’s motion to preclude A.F.’s sexual history this argument also fails.

¶18            Seventh, Bolton contends his appellate counsel should have
recused himself because he was trial counsel’s supervisor. We agree with
the superior court that Bolton has not established a colorable claim because
he provides no factual basis to support his contention. See Ariz. R. Crim. P.
32.5(d) (requiring a defendant to attach to the petition “any affidavits,
records, or other evidence currently available to the defendant supporting
the petition’s allegations”).

¶19           Finally, noting that this court vacated one count of furnishing
spirituous liquor to a minor, Bolton asserts appellate counsel was
ineffective by filing an Anders appeal. Given our conclusion that there was
insufficient evidence to sustain Bolton’s misdemeanor conviction, Bolton,
2016 WL 6081752, at *2, ¶ 9, Bolton’s argument might establish Strickland’s
performance prong. See Smith v. Robbins, 528 U.S. 259, 288 (2000) (stating
that a defendant need only “show that a reasonably competent attorney
would have found one nonfrivolous issue warranting a merits brief”).
Although we vacated that conviction, Bolton’s argument ignores the fact
we also concluded that his remaining convictions and sentences were
supported by sufficient evidence and that the record did not disclose any
nonfrivolous basis to challenge those convictions and resulting sentences.
Bolton, 2016 WL 6081752, at *3, ¶ 18. Even if appellate counsel’s


                                       7
                            STATE v. BOLTON
                            Decision of the Court

performance was deficient in this aspect, Bolton has sustained no
continuing prejudice on the convictions and sentences he attacks in his
petition, see Smith, 528 U.S. at 285 (stating that it is petitioner’s burden to
demonstrate prejudice by showing “a reasonable probability that, but for
his counsel’s unreasonable failure to file a merits brief, he would have
prevailed on his appeal”), and thus Bolton fails to establish a colorable
claim of ineffective assistance of counsel.

                               CONCLUSION

¶20           For these reasons, we grant review but deny relief.




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




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