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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       TOM DEAN SMITH, Petitioner.

                         No. 1 CA-CR 16-0259 PRPC
                              FILED 8-15-2017


     Petition for Review from the Superior Court in Navajo County
                        No. S0900CR201100301
                 The Honorable Robert J. Higgins, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Navajo County Attorney’s Office, Holbrook
By Galen Wilkes
Counsel for Respondent

Tom Dean Smith, Florence
Petitioner
                             STATE v. SMITH
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Jon W. Thompson joined.


M c M U R D I E, Judge:

¶1             Petitioner Tom Dean Smith petitions this court to review the
dismissal of his petition for post-conviction relief. We have considered the
petition for review and, for the reasons stated, grant review but deny relief.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Smith returned home to the trailer he shared with his wife,
the victim, on April 24, 2011. Upon entering the room, he began pulling her
hair, punching her in the face, and demanding oral sex. While threatening
her, he pinned her arms down with his knees, and forced his penis into her
mouth. Smith subsequently left the room and the victim called 9-1-1.

¶3             At trial, in addition to hearing from the victim and the police,
the jury heard a recording of a threatening message Smith left on the
victim’s cell phone just prior to the assault. A jury found Smith guilty of
kidnapping/domestic violence, aggravated assault/domestic violence and
sexual assault/domestic violence. The superior court imposed concurrent
sentences of 5 years on the kidnapping charge, 6.25 years on the aggravated
assault charge, and 6.25 years on the sexual assault charge.

¶4             Smith filed an appeal and this court affirmed his convictions
and sentences. State v. Smith, 1 CA-CR 12-0058, 2013 WL 4321228 (Ariz.
App. Aug. 15, 2013) (mem. decision). This court, in upholding the
convictions and sentences, rejected Smith’s claims that (1) the trial court did
not provide him with portions of the transcripts not requested by counsel;
(2) the court inappropriately instructed the jury about reasonable doubt; (3)
his sentences were excessive; and (4) his 6.25-year prison sentence for
sexual assault was improper. We did correct the term of imprisonment on
the aggravated assault charge, holding it should be 2.5 years in accordance
with the superior court’s oral pronouncement rather than the 6.25 years
stated in the minute entry. A corrected minute entry was subsequently
issued by the superior court.




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                             STATE v. SMITH
                            Decision of the Court

¶5            Smith filed a timely notice of post-conviction relief and his
appointed Rule 32 counsel filed a notice of completion. Smith then filed a
pro se petition for post-conviction relief. The trial court summarily
dismissed the petition because it failed to state a colorable claim. Smith filed
a motion for reconsideration, which the superior court denied. Smith’s
timely petition for review followed.

                               DISCUSSION

¶6             In his petition for review, Smith claims he presented colorable
claims for relief that warranted an evidentiary hearing. Specifically, Smith
claims he received ineffective assistance of counsel from his trial attorney,
appellate attorney, and Rule 32 counsel. Smith asserts his trial counsel failed
to convey his willingness to enter a “no-contest plea,” and that trial counsel
failed to inform him of the State’s plea offer of 5.25 years until 3 days prior
to trial. Smith further argues his appellate and Rule 32 counsel should have
raised the plea-bargaining issues. Smith’s second claim is that his trial
counsel failed to challenge the admission of the incriminating audiotape as
“induced” in bad faith, a violation of the rules of evidence (i.e., foundation),
and a violation of state and federal wire-tapping laws. His third claim
relates to counsel’s failure to request transcripts, appropriately designate
the record, and failure to challenge the superior court’s ”reasonable doubt”
instruction. Finally, Smith claims that his trial counsel introduced and/or
failed to challenge the introduction of “bad acts” evidence at trial,
prejudicing his case.

¶7             A superior court may summarily dismiss a Rule 32 petition
only if it finds no “material issue of fact or law exists which would entitle
the defendant to relief.” Ariz. R. Crim. P. 32.6(c). 1 To receive an evidentiary
hearing, the defendant must present a “colorable claim”—one which, if
true, would have changed the outcome of the proceeding. State v. Watton,
164 Ariz. 323, 328 (1990). A decision as to whether a petition presents a
colorable claim is, to some extent, a discretionary decision for the superior
court. State v. D’Ambrosio, 156 Ariz. 71, 73 (1988). An appellate court will
reverse a trial court’s summary dismissal only if an abuse of discretion
affirmatively appears. Watton, 164 Ariz. at 325; State v. Bowers, 192 Ariz. 419,
422, ¶ 10 (App. 1998).




1      We cite to the current version of applicable statutes or rules when no
revision after the date of an alleged offense has occurred.



                                       3
                             STATE v. SMITH
                            Decision of the Court

A.     The Superior Court Did Not Err by Summarily Denying Smith’s
       Claims of Ineffective Assistance of Counsel.

¶8            As a threshold matter, Smith’s claim against his Rule 32
counsel is not cognizable. A defendant who did not enter a plea agreement
has “no constitutional right to counsel or effective assistance in
post-conviction proceedings.” State v. Krum, 183 Ariz. 288, 292, n.5 (1995).

¶9             Smith’s claim of ineffective assistance of appellate counsel is
not colorable. A defendant may only bring claims of ineffective assistance
of trial counsel in a Rule 32 proceeding. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9
(2002) (“[Ineffective assistance of trial counsel claims] improvidently raised
in a direct appeal, henceforth, will not be addressed by appellate courts
regardless of merit.”); State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20
(2007). In his petition for review to this court, the only claim specified
against appellate counsel relates to appellate counsel’s failure to raise, on
appeal, an ineffective assistance of trial counsel claim relating to plea
bargaining. Smith’s ineffective assistance of trial counsel claim could not
have been raised on direct appeal by his appellate counsel. See Spreitz, 202
Ariz. at 3, ¶ 9. By not raising his other claims of ineffective assistance of
appellate counsel in his petition for review, Smith has abandoned those
claims. Ariz. R. Crim. P. 32.9(c)(1) (petition for review shall contain “the
reasons why the petition should be granted” and “specific references to the
record”); State v. Rodriguez, 227 Ariz. 58, 61, ¶ 12, n.4 (App. 2010) (the court
declined to address arguments not raised in petition for review).

¶10           Smith’s claims relating to ineffective assistance of trial counsel
and plea bargaining are likewise not colorable. Smith first asserts that his
counsel should have conveyed to the State his willingness to enter a “no
contest” plea. Criminal defendants have no constitutional right to a plea
agreement and the State is not required to offer one. State v. Jackson, 209
Ariz. 13, 15, ¶ 6 (App. 2004). Any “no contest” plea pursuant to a plea
agreement would have required consent of the State first, and then the
court. See Ariz. R. Crim. P. 17.1(c). The State controlled the terms of any plea
agreement permitting both a no contest plea and any stipulations
concerning penalty. Moreover, Smith does not explain why he was more
likely to accept the plea offered by the State if it had been a “no contest”
plea.

¶11            On two occasions Smith rejected the State’s plea offer. In State
v. Vallejo, we rejected the claim that trial counsel should inquire as to why
a defendant rejected a plea offer, or should find out whether a plea to a
different offense is available. 215 Ariz. 193, 195, ¶ 7 (App. 2007) (counsel not


                                       4
                             STATE v. SMITH
                            Decision of the Court

ineffective for failing to resume plea negotiations after defendant rejected
original offer).

¶12            Likewise, there is no evidence in the record that supports
Smith’s other contention that his trial counsel failed to convey the State’s
plea offer in a timely manner. The record shows that Smith declined the
State’s offer months before the trial. However, even if we were to find
support for Smith’s claim that the State’s offer was only communicated to
him three days prior to the trial, Smith would still not be entitled to relief.
Cf. State v. Donald, 198 Ariz. 406, 418, ¶ 46 (App. 2000) (a defendant suffers
a constitutionally significant injury when he loses a favorable plea bargain
because of ineffective assistance of counsel). Smith has cited no authority to
support his contention that defendants must be given any particular time
frame for considering and accepting a plea agreement. His statement in his
petition that he was “. . . mentally committed to the trial process and was
unable to reasonably consider the state’s offer” cuts against his argument
that he wanted the State’s offer. Smith has failed to establish that there were
any errors in how trial counsel handled the plea-bargaining process, and
that but for those errors he would have pled guilty in lieu of going to trial.
See Donald, 198 Ariz. at 418, ¶ 46.

¶13            Smith claims his trial counsel failed to request transcripts
relating to the reading of the charges and failed to object to the reasonable
doubt instruction. However, these claims were raised by Smith on direct
appeal and rejected by this court. These claims are now precluded from
further review. Ariz. R. Crim. P. 32.2(a)(2) (a defendant is precluded from
relief based upon claims “[f]inally adjudicated on the merits on appeal”).

¶14           Finally, Smith did not set forth a colorable claim that his trial
counsel was ineffective for failing to object to “bad acts” evidence. To state
a colorable claim of ineffective assistance of counsel, a defendant must
show that (1) counsel’s performance fell below objectively reasonable
standards and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687–88, 691–92 (1984); State v. Nash,
143 Ariz. 392, 397 (1985). Failure to establish either criterion is fatal to the
claim, and obviates the need for a court to consider the other prong. State v.
Salazar, 146 Ariz. 540, 541–42 (1985).

¶15           Smith complains about the victim’s testimony that he set a fire
in which their son perished, offered by her on cross-examination to explain
why she and Smith did not live together; testimony relating to another case
in justice court (introduced by his counsel in an attempt to show his client
was disruptive but not violent); prior incidents of assaults with the same


                                       5
                             STATE v. SMITH
                            Decision of the Court

victim (not objected to); and testimony relating to another break-in at the
location of the assault and the placement/hiding of knives by Smith. The
victim opined that Smith did this to prevent her from using these against
him, as she did in a previous incident. Again, no objection was raised.

¶16            Smith has not set forth a colorable claim for prejudice.
Strickland, 466 U.S. at 687. The trial testimony of the victim was unrebutted
and supported by physical evidence of the assault. The officer at the scene
testified about her injuries and appearance. The State presented the
incriminating and threatening messages left by Smith on the victim’s cell
phone. See infra, ¶¶ 18–20. Finally, the State introduced incriminating letters
by Smith admitting that “I know what I did was wrong” and stating “It will
never happen again.” In both letters, Smith asked the victim to drop the
charges. There was also evidence he had fled the scene.

¶17            To establish prejudice, this court must find to a reasonable
probability, absent the evidence that Smith complains of, that “the result of
the trial [was] unreliable or the proceeding fundamentally unfair.” Lockhart
v. Fretwell, 506 U.S. 364, 372 (1993). We can firmly say that given the
overwhelming evidence of Smith’s guilt, the admission of the
now-challenged evidence did not make the result of the trial unreliable or
the proceeding fundamentally unfair. See State v. Rankovich, 159 Ariz. 116,
123 (1988). 2

B.     Smith Failed to Set Forth a Colorable Claim that the Admission of
       Messages Left on the Victim’s Cell Phone Was Error.

¶18            Smith claims that the admission of the messages he left on the
victim’s cell phone was error. Smith did not raise this issue on direct appeal.
Because the issue could have been raised on direct appeal, Smith is
precluded from raising the claim in this Rule 32 proceeding. Ariz. R. Crim.
P. 32.2(a)(1) (a defendant is precluded from relief for issues that were
“raiseable on direct appeal”).

¶19             Preclusion notwithstanding, the claim is meritless. Smith
takes the untenable position that only he could have given permission for
the officer to record his messages since he was the only “participant.” Smith


2      Because we believe that the consideration of the second prong of the
inquiry is dispositive of the ineffective assistance claim, we neither reach
nor comment on the first prong of the inquiry. Rankovich, 159 Ariz. at 122–
23.



                                      6
                             STATE v. SMITH
                            Decision of the Court

voluntarily called the victim’s cellphone and left the messages. The victim,
an intended party to the call, consented to the use of the messages and
rerecording, and testified at trial for foundational purposes. The State laid
foundation under the rules of evidence and the messages were properly
admitted.

¶20           The claim that there is some constitutional or statutory basis
for suppression is likewise without merit. The use of the messages did not
implicate either the Fourth or Fifth Amendments, as Smith had no
expectation of privacy in the contents of messages left for the victim. There
was no search, because Smith’s incriminating statements were voluntary
and he was not in custody or being interrogated. See United States v. Caceres,
440 U.S. 741, 750 (1979) (constitution does not prohibit use of recordings of
statements made by a party to the conversation); United States v. White, 401
U.S. 745, 753 (1971) (plurality opinion); State v. Juarez, 203 Ariz. 441, 444
(App. 2002) (defendant may not challenge a search if he does not have an
expectation of privacy in the location searched); State v. Stanly, 123 Ariz. 95,
102 (App. 1979); see also Miranda v. Arizona, 384 U.S. 436, 478 (1966)
(“Volunteered statements of any kind are not barred by the Fifth
Amendment . . . .”). Additionally, Arizona law specifically permits the use
of the recording introduced in this case. See A.R.S. § 13-3012(9); State v.
Allgood, 171 Ariz. 522, 523–24 (App. 1992). 3

                                CONCLUSION

¶21           We grant review but deny relief.




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




3       Because we find the admission of the evidence was not error, we
decline to address the claim for ineffective assistance of trial counsel for
failing to object to the admission of the evidence.


                                         7
