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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  JUSTIN WADE LUNSFORD, Petitioner.

                         No. 1 CA-CR 16-0110 PRPC
                              FILED 2-20-2018


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2008-007842-001 DT
                  The Honorable Janet E. Barton, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Justin Wade Lunsford, Florence
Petitioner
                           STATE v. LUNSFORD
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Chief Judge Samuel A. Thumma
joined.


B R O W N, Judge:

¶1             Justin Lunsford petitions this Court for review from the
dismissal of his petition for post-conviction relief filed pursuant to Arizona
Rule of Criminal Procedure 32. We have considered the petition for review
and, for the reasons stated, grant review and deny relief.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2             The State charged Lunsford with first-degree murder, arson
of an occupied structure, burglary in the second degree, arson of a structure
or property, and animal cruelty. The State alleged that in July 2008
Lunsford stabbed a woman to death and started fires in her home and
vehicle in an apparent attempt to conceal the murder. The State also noticed
its intent to seek the death penalty if Lunsford were convicted of first-
degree murder.

¶3            After participating in settlement discussions, Lunsford
agreed that he would plead no contest to arson of an occupied structure and
an amended charge of second-degree murder. The superior court accepted
the no contest plea and sentenced Lunsford to consecutive prison terms of
eighteen years for murder and five years for arson.

¶4            Lunsford timely filed a notice of post-conviction relief.
Appointed counsel reviewed the record, trial counsel’s file, and
correspondence from Lunsford but was unable to find any non-frivolous
claims for relief. Proceeding pro per, Lunsford filed two unsuccessful
requests for DNA testing in accordance with Arizona Revised Statute
(“A.R.S.”) section 13-4240.

¶5            Lunsford filed a petition for post-conviction relief in August
2014 and raised claims of actual innocence and ineffective assistance of
counsel. He argued his trial counsel was ineffective as a result of (1) “failing
to investigate and follow-up on physical evidence, including DNA, that
would have demonstrated [Lunsford]’s innocence in this matter”; (2)


                                       2
                            STATE v. LUNSFORD
                             Decision of the Court

“failing to investigate claims that other individuals . . . had committed the
murder”; (3) “failing to challenge the pretrial identifications”; and (4)
“coercing a plea agreement . . . on the eve of trial, notwithstanding
Mr. Lunsford’s assertions from the outset that he was completely innocent
of the charges against him.” In a detailed ruling, the superior court denied
Lunsford’s petition.

                                 DISCUSSION

       A.      Actual Innocence

¶6             In his petition for review, Lunsford re-urges his claim of
actual innocence. We will only reverse the superior court’s ruling if
petitioner proves an abuse of discretion or error of law. State v. Gutierrez,
229 Ariz. 573, 576-77, ¶ 19 (2012); State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App.
2011).

¶7            A defendant may be entitled to post-conviction relief on the
basis of actual innocence only upon a showing “by clear and convincing
evidence that . . . no reasonable fact-finder would find the defendant guilty
beyond a reasonable doubt.” Ariz. R. Crim. P. 32.1(h). As he did in the
superior court, Lunsford bases his actual innocence claim on assertions that
(1) no physical evidence exists linking him to the murder; (2) there are other
credible suspects; and (3) he has an alibi showing he was not near the
murder scene on the day of the murder.

¶8             In evaluating these arguments, the superior court reviewed
the record and identified the evidence the State would have presented at a
trial—evidence Lunsford does not dispute. This evidence included
Lunsford’s admissions that he met the victim at a bar the evening of the
murder; they purchased and consumed drugs and alcohol together before
engaging in consensual sex at the victim’s home. He visited two
individuals the following day and used the victim’s vehicle as
transportation to the first individual’s home. Both individuals believed
Lunsford was acting strangely. The victim’s cell phone was used to call
persons known to Lunsford but to whom the victim had no known ties.
Lunsford had access to a truck matching the description of a vehicle seen
leaving the area near the victim’s vehicle soon after it was set on fire.
Circumstances surrounding the discovery of the body and its condition
suggested the murderer was trying to destroy evidence. The court then
correctly pointed out that Lunsford failed to include any evidentiary proof
of his assertions that other individuals had a motive to murder the victim
or that his assertions were largely inconsistent with the State’s evidence.



                                        3
                          STATE v. LUNSFORD
                           Decision of the Court

¶9           On this record, we find no error in the superior court’s
conclusion that Lunsford failed to meet his burden of establishing that no
reasonable fact-finder would have found him guilty of the charged offenses
against him.

      B.     DNA Testing

¶10           Lunsford argues the superior court erred in denying his
requests for DNA testing on the following evidentiary items: a gas
container found in the victim’s home, a bloody handprint on the wall of the
victim’s bedroom, contents of the bathroom sink trap, a gas container found
in the victim’s vehicle, and fingernail scrapings from each of the victim’s
hands. Lunsford contends that the presence of another person’s DNA on
these items would have caused the State to dismiss the charges.

¶11          The superior court must order post-conviction DNA testing if
the defendant proves that all of the following apply:

      1.     A reasonable probability exists that the petitioner
      would not have been prosecuted or convicted if exculpatory
      results had been obtained through deoxyribonucleic acid
      testing.

      2.      The evidence is still in existence and is in a condition
      that allows deoxyribonucleic acid testing to be conducted.

      3.     The evidence was not previously subjected to
      deoxyribonucleic acid testing or was not subjected to the
      testing that is now requested and that may resolve an issue
      not previously resolved by the previous testing.

A.R.S. § 13-4240(B). The court may order post-conviction DNA testing if the
defendant proves that all of the following apply:

      1.      A reasonable probability exists that either:

             (a) The petitioner’s verdict or sentence would have
             been more favorable if the results of deoxyribonucleic
             acid testing had been available at the trial leading to
             the judgment of conviction.

             (b) Deoxyribonucleic acid testing will produce
             exculpatory evidence.




                                     4
                            STATE v. LUNSFORD
                             Decision of the Court

       2.      The evidence is still in existence and is in a condition
       that allows deoxyribonucleic acid testing to be conducted.

       3.     The evidence was not previously subjected to
       deoxyribonucleic acid testing or was not subjected to the
       testing that is now requested and that may resolve an issue
       not previously resolved by the previous testing.

A.R.S. § 13-4240(C). After reviewing Lunsford’s motions, the court denied
his requests on the grounds that he failed to show DNA test results “either
separately or combined,” would result in a reasonable probability that he
would not have been prosecuted or convicted or that his sentence would
have changed.

¶12           We find no abuse of discretion. The State could have
presented sufficient evidence—including Lunsford’s admissions—upon
which a reasonable jury could have convicted Lunsford of the charged
crimes. Given the nature of the evidence incriminating Lunsford, we are
not persuaded a reasonable probability exists that DNA evidence excluding
Lunsford or identifying others as having contributed to the items identified,
while exculpatory, would have kept the State from prosecuting Lunsford
or resulted in a reduced sentence.

       C.     Ineffective Assistance of Counsel

¶13           Lunsford argues the superior court erred in concluding he did
not state a colorable claim for ineffective assistance of counsel. He asserts
that counsel failed to investigate the facts surrounding the crime and
prepare for a trial, which forced him to enter into a plea agreement. We
review a decision denying post-conviction relief on the grounds of
ineffective assistance of counsel for an abuse of discretion. See State v.
Royalty, 236 Ariz. 125, 130, ¶ 17 (App. 2014) (citing Strickland v. Washington,
466 U.S. 668, 687 (1984)).

¶14             To state a colorable claim, a defendant must show both that
counsel’s performance fell below objectively reasonable standards and that
the deficient performance resulted in prejudice to the defendant. Strickland,
466 U.S. at 687; State v. Nash, 143 Ariz. 392, 397-98 (1985) (adopting the
Strickland test). “To establish prejudice in the context of a plea agreement,
a defendant must show a reasonable probability that except for his lawyer’s
error he would not have waived his right to trial and entered a plea.” State
v. Ysea, 191 Ariz. 372, 377, ¶ 17 (1998), superseded by statute on other grounds,
(citing Hill v. Lockhart, 474 U.S. 52, 57 (1985)).



                                       5
                           STATE v. LUNSFORD
                            Decision of the Court

¶15          Lunsford argues the superior court erred in considering
statements he made at a settlement conference regarding counsel’s
performance and his own desire to enter into a plea agreement. During
these proceedings, Lunsford stated:

       I’ve had the regular healthy doubts at times about Counsel
       that I think every defendant has. But on the whole I trust
       [first-chair defense counsel] entirely, not just his judgment,
       but his competence. And he is why we’re sitting here today
       . . . . I’m so sick of fighting this stupid case. I have been
       fighting it 2 1/2 years. I don’t want to spend the rest of my
       life fighting it. I want to move on.

Lunsford now asserts his subjective beliefs were not relevant to a
determination of whether counsel’s performance was deficient.

¶16             We need not address this specific point because the
statements are relevant to the question of whether Lunsford was prejudiced
by counsel’s purported deficient performance. The record supports the
superior court’s findings that Lunsford initiated plea discussions and was
open to considering a plea agreement that provided an opportunity to
someday rejoin his family. Additionally, counsel stated he “spent a lot of
time looking at the opportunity for other people to have access to the
victim” and “about two years of work trying to follow up on just about
every lead . . . flying different places around here and up to Oregon, talking
to as many people as [he] could, having [second chair] do lots of work,
having [his] investigative staff do a lot of work”—to ultimately conclude
“the State’s case is significant.” The record further reflects Lunsford was
granted an opportunity to discuss the plea with his family before accepting
it, acknowledged the plea was in his best interest, and specifically denied
being forced or threatened to admit the charges. The record supports the
superior court’s finding that Lunsford entered the plea knowingly,
voluntarily, and intelligently. Lunsford has not established a colorable
claim of prejudice, and thus his ineffective assistance of counsel claim fails.
See Royalty, 236 Ariz. at 130, ¶ 17 (citing Strickland, 466 U.S. at 687).




                                      6
                         STATE v. LUNSFORD
                          Decision of the Court


                             CONCLUSION

¶17            We grant review of Lunsford’s petition for post-conviction
relief, but deny relief.




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




                                       7
