                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                          STATE OF ARIZONA,
                             Respondent,

                                   v.

                      KNUTE ECKHARD KOLMANN,
                              Petitioner.

                          No. CR-15-0172-PR
                          Filed March 16, 2016

           Appeal from the Superior Court in Yavapai County
                 The Honorable Celé Hancock, Judge
                           No. CR 20061557
                             AFFIRMED

         Memorandum Decision of the Court of Appeals, Division Two
                   No. 2 CA-CR 2015-0071-PR
                       Filed April 8, 2015
                          AFFIRMED

COUNSEL:

Wendy F. White (argued), White Law Offices, PLLC, Flagstaff, Attorney for
Knute Eckhard Kolmann

Sheila Sullivan Polk, Yavapai County Attorney, Steven A. Young (argued),
Deputy County Attorney, Prescott, Attorneys for State of Arizona

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE
CHIEF JUSTICE PELANDER, and JUSTICES BRUTINEL, TIMMER, and
BOLICK joined.

CHIEF JUSTICE BALES, opinion of the Court:

¶1            We affirm the trial court’s summary dismissal of claims for
post-conviction relief asserting that defense counsel was ineffective and
juror misconduct occurred when the judge, without objection, replaced a
juror who said she could not judge anybody’s guilt or innocence.
                            STATE V. KOLMANN
                             Opinion of the Court


                                       I.

¶2             A jury in 2010 found Knute Kolmann guilty on ten counts of
sexual exploitation of a minor and one count of conspiracy to commit sexual
exploitation of a minor. On the sixth day of trial, after the jury had
deliberated for several hours, the jury foreperson sent the trial judge a note
stating that juror L.M. wanted to discuss a personal matter. The judge, in
the presence of counsel, called L.M. back into the courtroom and asked,
“What is your concern?” L.M. replied, “did you say [earlier] there were
some things we could not talk to you about?” After cautioning L.M. not to
discuss “what is going on in the jury room or anything having to do with
the deliberations,” the judge asked if she had some other personal matter
concerning the jury’s reconvening the next week. L.M. responded that she
did not feel qualified to be a juror, stating “I feel like I can’t judge anybody”
and that she “was wrong” in not saying so earlier.

¶3             Counsel declined to question L.M. further. The judge asked
L.M. if there was “anything more that [she] wanted to say on this issue”
and if it was “just a matter of not feeling like [she] can make a judgment in
this particular case.” She reaffirmed that she could not make a judgment
for personal reasons but said nothing else. Without objection by counsel,
the judge excused L.M. from the jury and replaced her with an alternate
juror.

¶4            After excusing L.M., the judge instructed the remaining
eleven jurors that when they were joined by the alternate juror, who had
not “had the benefit of the discussions” that had occurred “already within
the jury room,” they “to some extent . . . are going to have to start over again
and involve her in discussions with regard to any individual and all of the
counts, generally.” When the jury reconvened five days later with the
alternate juror, it deliberated about seventy minutes and returned a verdict
finding Kolmann guilty on all counts. The trial court imposed consecutive
sentences of imprisonment totaling 155 years, and the court of appeals
affirmed the convictions and sentences on appeal. State v. Kolmann, No. 1
CA-CR 10-0378, at *1 ¶ 1 (Ariz. App. March 22, 2012) (mem. decision).

¶5            In 2013, Kolmann filed a Rule 32 petition for post-conviction
relief based on a 2013 affidavit by L.M., who stated she had asked to be
dismissed in 2010 by telling the judge she “did not feel competent to be a

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                            STATE V. KOLMANN
                             Opinion of the Court

juror or to judge anyone.” Noting that this was true, L.M. added that she
especially did not want to stay on the jury because she was the only one not
convinced of Kolmann’s guilt, did not want to cause a hung jury, and was
overwhelmed by the grave task of determining someone’s guilt. L.M. said
that one reason she did not feel competent was that she did not “understand
the law well enough” and another reason was that while she was not
convinced the defendant was innocent, she also was not convinced he was
guilty. She noted that when she asked to be dismissed, she would have
voted “not guilty” if the jury had taken a vote then. L.M. also recounted
that another juror had told her that if she wanted the judge to “let her go,”
she should tell the court that she did not feel competent to judge another
person rather than saying she disagreed with her fellow jurors.

¶6             Kolmann raised three claims in his petition for post-
conviction relief related to L.M.’s dismissal from the jury: ineffective
assistance of trial counsel, ineffective assistance of appellate counsel, and
juror misconduct. The trial court summarily dismissed the petition for
failure to state a colorable claim. The court of appeals granted review but
denied relief.

¶7             We granted review because the standard for summary
dismissal of Rule 32 petitions alleging juror misconduct is an issue of
statewide importance. We have jurisdiction pursuant to article 6, section
5(3), of the Arizona Constitution and A.R.S. § 12-120.24.

                                      II.

¶8             Summary dismissal of a petition for post-conviction relief is
appropriate “[i]f the court . . . determines that no . . . claim presents a
material issue of fact or law which would entitle the defendant to relief
under this rule and that no purpose would be served by any further
proceedings.” Ariz. R. Crim. P. 32.6(c). Stated differently, a petition that
fails to state a colorable claim may be dismissed without an evidentiary
hearing. As we recently explained, “[t]he relevant inquiry for determining
whether the [defendant] is entitled to an evidentiary hearing is whether he
has alleged facts which, if true, would probably have changed the verdict or
sentence. If the alleged facts would not have probably changed the verdict
or sentence, then the claim is subject to summary dismissal.” State v.
Amaral, __ Ariz. __, __ ¶ 11, -- P.3d --, -- (2016). We review the trial court’s
summary dismissal of a Rule 32 petition for an abuse of discretion. See id.

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                            STATE V. KOLMANN
                             Opinion of the Court

at __ ¶ 9, -- P.3d at --; see also State v. Bennett, 213 Ariz. 562, 566 ¶ 17, 146
P.3d 63, 67 (2006).
                                         A.

¶9              First, we address Kolmann’s claims of ineffective assistance of
counsel. To state a colorable claim, a petitioner must show “both that
counsel’s performance fell below objectively reasonable standards and that
this deficiency prejudiced [him].” Bennett, 213 Ariz. at 567 ¶ 21, 146 P.3d at
68 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)); see also Hinton v.
Alabama, 134 S. Ct. 1081, 1088-90 (2014) (discussing constitutional deficiency
and prejudice prongs of the Strickland test). To establish deficient
performance, a defendant must show that his counsel’s assistance was not
reasonable under prevailing professional norms, “considering all the
circumstances.” Hinton, 134 S. Ct. at 1088 (quoting Strickland, 466 U.S. at
688). To establish prejudice, a defendant must “show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 1089 (quoting
Strickland, 466 U.S. at 694). “When a defendant challenges a conviction, the
question is whether there is a reasonable probability that, absent the errors,
the factfinder would have had a reasonable doubt respecting guilt.” Id.,
quoting Strickland, 466 U.S. at 695.

¶10            In reviewing claims of ineffective assistance, courts “indulge
a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689. A defendant
can overcome this presumption by showing that counsel’s decisions were
not tactical or strategic in nature, but were instead the result of “ineptitude,
inexperience, or lack of preparation.” State v. Goswick, 142 Ariz. 582, 586
691 P.2d 673, 677 (1984).

¶11            Kolmann argues that he is entitled to an evidentiary hearing
on his ineffective assistance claims. He contends his trial counsel was
ineffective by: (1) waiving Kolmann’s right to be present during the juror
substitution proceedings; (2) failing to question L.M. about her reasons for
requesting dismissal from the jury and not objecting to her dismissal; and
(3) failing to ask the trial court to instruct the reconstituted jury to begin
deliberations anew pursuant to Arizona Rule of Criminal Procedure
18.5(h). He also argues that his appellate counsel was ineffective by not
raising the trial court’s compliance with Rule 18.5(h) as an issue on direct
appeal.

                                        4
                            STATE V. KOLMANN
                             Opinion of the Court

¶12           Kolmann argues that his trial counsel erroneously waived his
presence during the juror substitution proceedings. Defendants have the
right, rooted in the Sixth Amendment, to be present at every stage of the
trial. Ariz. R. Crim. P. 19.2 (A defendant “has the right to be present at
every stage of the trial, including the impaneling of the jury [and] the giving
of additional instructions . . . “); State v. Dann, 205 Ariz. 557, 571 ¶ 53, 74
P.2d 231, 245 (2003). But that right is not absolute and it may be waived by
defendants or their counsel. See State v. Rose, 231 Ariz. 500, 504 ¶ 9, 297 P.3d
906, 910 (2013) (explaining that “a trial court may rely on counsel’s waiver
of a defendant’s right to be present in certain circumstances; personal
waiver by the defendant is not required”) (internal citations omitted).

¶13            Kolmann has failed to state a colorable claim with regard to
counsel’s waiving his presence. Even if we assume, without deciding, that
counsel fell below professional standards in this respect, Kolmann has not
attempted to show how his absence prejudiced him. Cf. State v. Guytan, 192
Ariz. 514, 520 ¶ 17 & n.4, 968 P.2d 587, 593 (App. 1998) (noting that “[i]t is
not good practice” for trial counsel to waive defendant’s presence without
consulting defendant “when issues of substance are before the court,” but
harmless-error analysis applies to defendant’s absence during juror
substitution).

¶14           Kolmann also argues that trial counsel rendered ineffective
assistance by not questioning L.M. when she asked to be excused from the
jury. This failure, Kolmann maintains, cannot be characterized as a
strategic decision because it resulted from his counsel’s acknowledged
inexperience with the particular situation. Kolmann argues that if defense
counsel had further questioned L.M., she would have revealed that she was
seeking dismissal to avoid being the lone holdout - an improper reason for
dismissal. He posits that if L.M. had remained on the panel, there is a
reasonable probability that the trial would have ended with a hung jury.

¶15            Kolmann has not overcome the presumption that his lawyer
acted within the range of reasonable professional assistance in not asking
L.M. any questions. The judge properly cautioned L.M. not to discuss the
jury’s deliberations, which preserved the confidentiality of the
deliberations and avoided the danger of coercing a verdict. Cf. State v.
Huerstel, 206 Ariz. 93, 100 ¶¶ 19-20, 75 P.3d 698, 705 (2003) (noting that a
court’s jury instructions and knowledge of jury split are factors in assessing
whether a verdict was coerced); State v. Sabala, 189 Ariz. 416, 419, 943 P.2d

                                       5
                             STATE V. KOLMANN
                              Opinion of the Court

776, 779 (App. 1997) (noting that when a judge learns of jury impasse the,
“better practice . . . is for the court to instruct jurors to refrain from revealing
the numerical split and whether they are inclined to acquit or convict”).
“As a general rule, no one - including the judge presiding at a trial - has a
‘right to know’ how a jury, or any individual juror, has deliberated or how
a decision was reached by a jury or juror. The secrecy of deliberations is the
cornerstone of [the] jury system.” United States v. Thomas, 116 F.3d 606, 618
(2d Cir. 1997).

¶16           Given the judge’s direction to L.M. not to reveal the jury’s
deliberations and her reaffirmation, after the judge asked if she had
anything more to say, that “it was just a matter” of her not being able to
judge anyone, the record does not suggest Kolmann’s counsel acted
unreasonably by not independently questioning L.M. Defense counsel, the
prosecutor, and the judge discussed whether to ask L.M. any additional
questions and none chose to do so. That defense counsel had no experience
with a similar situation does not itself suggest a failure to meet reasonable
professional standards. The trial judge noted his own unfamiliarity with a
juror belatedly revealing that she was incapable of “judging anybody,” and
Kolmann has not identified any facts or legal authority suggesting that
defense counsel here was acting outside “the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689.

¶17            Nor has Kolmann stated a colorable claim that counsel was
ineffective for failing to object to the trial court’s dismissal of L.M. Under
Arizona Rule of Criminal Procedure 18.5(h), trial judges have broad
discretion to excuse a deliberating juror “due to inability or disqualification
to perform required duties,” and to substitute an alternate juror. Once L.M.
disclosed she could not judge anybody for personal reasons, the judge was
authorized to replace her with an alternate. Defense counsel did not act
incompetently by failing to object to what Rule 18.5(h) expressly allowed.

¶18           Kolmann argues that his trial counsel was also ineffective by
failing to ask the judge to instruct the reconstituted jury “to begin
deliberations anew” as required by Rule 18.5(h). After dismissing L.M., the
judge instructed the remaining eleven jurors that “[e]ssentially, [the
alternate juror] hasn’t had the benefit of the discussions with you of what
has taken place already within the jury room. So to some extent you are
going to have to start over again and involve her in discussions with regard
to any individual and all of the counts, generally.” Before excusing the

                                         6
                            STATE V. KOLMANN
                             Opinion of the Court

eleven jurors for the weekend, he told them that, when they reassembled
the following week with the alternate juror, “Don’t start deliberating until
all 12 are present. Don’t even discuss the case. Just talk about sports or the
weather or whatever else you want to talk about until everybody is there,
because everybody is entitled to each other’s full discuss [sic] of the
situation.” The alternate juror was not present when the trial court gave
these instructions, the instructions were not submitted in writing, and
counsel did not request that they be repeated to the reconstituted panel.

¶19            After the alternate juror joined the deliberations, the trial
court should have instructed the entire jury to begin deliberations anew.
See Ariz. R. Crim. P. 18.5(h). The rule mandates such an instruction “[i]f an
alternate joins the deliberations.” Id. Counsel’s failure to ask for such an
instruction, however, does not constitute ineffective assistance under
Strickland because Kolmann cannot show prejudice. Although instructing
jurors to “begin deliberations anew after a substitution guards against the
potential problems that substitution poses,” Guytan, 192 Ariz. at 521, 968
P.2d at 594, the omission of such an instruction does not always require
reversal of a conviction. Id.; see also Claudio v. Snyder, 68 F.3d 1573, 1577 (3d
Cir. 1995) (“The fact that the . . . trial court did not specifically instruct the
jury to begin its deliberations anew is not dispositive.”).

¶20            Here, all the jurors except the alternate were instructed that,
to some extent, they “were going to have to start over” by involving the
alternate in discussions about each of the counts. Although the court did
not strictly follow Rule 18.5(h) by saying “to some extent,” it expressed the
need to start deliberations anew by involving the alternate in discussing all
of the counts, and we presume the original eleven jurors followed this
instruction. State v. Martinez, 230 Ariz. 208, 216 ¶ 40, 282 P.3d 409, 417
(2012). The alternate only first began deliberating when she joined the jury;
if the others followed the court’s instructions to “start over” once she joined
them, the entire jury began deliberating anew. That the reconstituted jury
reached its verdict after about seventy minutes does not overcome the
presumption, as that time span does not itself suggest a failure by the jury
to deliberate anew. Given the presumption, Kolmann has not identified
how the failure to give the instruction to the alternate juror resulted in
prejudice.

¶21          Kolmann also makes no colorable claim of ineffective
assistance of appellate counsel regarding the Rule 18.5(h) instruction.

                                        7
                           STATE V. KOLMANN
                            Opinion of the Court

Appellate counsel did not raise this issue on direct appeal. Because trial
counsel failed to object, appellate counsel would have had to argue that the
trial court’s failure to instruct the entire jury to begin anew constituted
fundamental error that prejudiced Kolmann. State v. Valverde, 220 Ariz. 582,
584 ¶ 12, 208 P.3d 253, 255 (2009). Given Kolmann’s inability to show
prejudice, see supra ¶ 20, appellate counsel did not fall below professional
standards by not raising the Rule 18.5(h) issue on appeal.

                                      B.

¶22            Kolmann also claims that his right to a unanimous and
impartial jury was violated by juror misconduct due to L.M.’s lack of candor
about why she wanted to be excused and the second juror’s advice to L.M.
about what to tell the court to improve her chances of dismissal. This claim
fails for several reasons.

¶23            Juror misconduct may warrant a new trial when, among other
things, a juror “[p]erjures himself or herself or willfully fail[s] to respond
fully to a direct question posed during the voir dire examination.” Ariz. R.
Crim. P. 24.1(c)(3)(iii). This rule, however, does not avail Kolmann. In her
2013 affidavit, L.M. stated that she truthfully told the judge that she wanted
to be dismissed because she did not feel competent to be a juror or to judge
anyone. Given the judge’s initial directive to L.M. not to reveal discussions
within the jury room or anything related to deliberations, the record does
not suggest that L.M. perjured herself or willfully failed to respond fully to
a direct question when she discussed her reasons for seeking to be excused.

¶24            Although Rule 24.1(c)(3) does not by its terms encompass the
second juror’s alleged misconduct, we agree that a juror commits
misconduct by offering another juror strategic advice on how to seek
removal from the jury. Conceivably, such improper communications could
be grounds for a new trial under Rule 24.1(c)(5) if “the defendant has not
received a fair and impartial trial.” Although Rule 24.1(d) prohibits inquiry
into the “subjective motives or mental processes which led a juror to assent
or dissent from the verdict,” see State v. Walker, 181 Ariz. 475, 483, 891 P.2d
942, 950 (1995), we assume for present purposes that this rule would not
apply to either L.M.’s communications, since she did not participate in the
verdict, or the second juror’s advice to L.M., insofar as it did not pertain to
any reasons for that juror’s assent to the eventual verdict.


                                      8
                            STATE V. KOLMANN
                             Opinion of the Court


¶25            Because claims of juror misconduct can be raised on post-trial
motion under Rule 24, Kolmann generally is precluded from raising them
in a petition for post-conviction relief. Ariz. R. Crim. P. 32.2(a)(1). Kolmann
has not identified any applicable exception to the preclusion rule, and thus
the alleged juror misconduct does not constitute a colorable claim for relief.

¶26            Whether or not precluded, the claim of juror misconduct
would only entitle Kolmann to a new trial if he could show prejudice, either
actual or presumed. See State v. Miller, 178 Ariz. 555, 558, 875 P.2d 788, 791
(1994). He cannot do so. L.M. consistently said she was incapable of
making a decision, and that fact would have warranted excusing her from
the jury irrespective of her tentative inclination to vote not guilty or the
other juror’s advice to her. Cf. United States v. Spruill, 808 F.3d 585, 595 (2d
Cir. 2015) (dismissal of juror with bias was proper, even though at time she
was the lone holdout in deliberations). L.M.’s affidavit does not show that
she was encouraged or coerced by the second juror or anyone else to seek
to be excused. Instead, the affidavit states that when L.M. “felt
overwhelmed by the task of judging someone’s guilt,” she “decided to see
if she could be replaced” by the alternate, and the second juror “gave her
advice.” Kolmann’s speculation that the second juror wanted to replace
L.M. as a holdout juror does not alter the fact that the court properly
dismissed her based on her expressed inability to decide anybody’s guilt or
innocence.

¶27           Finally, Kolmann was entitled to an impartial jury, not a
particular jury. State v. Morris, 215 Ariz. 324, 334 ¶ 40, 160 P.3d 203, 213
(2007). Kolmann does not contend that the reconstituted jury was biased,
and the record reflects that the alternate juror was chosen along with the
regular jurors, heard all the evidence, and was instructed on the applicable
law. Ultimately, Kolmann was convicted by an impartial, unanimous
twelve-person jury. Thus, even if he properly raised his juror misconduct
claim, he has not shown he was denied a fair trial and thereby prejudiced.


                                      III.

¶28           The trial court did not abuse its discretion in summarily
dismissing Kolmann’s Rule 32 petition for post-conviction relief. We affirm
the decisions of the trial court and the court of appeals.

                                       9
