State v. Williams ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DAMON WILLIAMS, Petitioner.
No. 1 CA-CR 16-0301 PRPC
FILED 9-28-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2011-131806-001
The Honorable M. Scott McCoy, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Amanda M. Parker
Counsel for Respondent
Damon Williams, Laveen
Petitioner
MEMORANDUM DECISION
Judge Diane M. Johnsen delivered the decision of the court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.
STATE v. WILLIAMS
Decision of the Court
J O H N S E N, Judge:
¶1 Damon Williams seeks 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.
¶2 A jury found Williams guilty of discharging a firearm at a
structure, criminal damage and unlawful discharge of a firearm, two counts
of aggravated assault and three counts of endangerment. The offenses
related to an incident in which Williams shot a gun at his girlfriend's house.
On direct appeal, this court affirmed Williams's convictions and the
resulting sentences. State v. Williams, 1 CA-CR 12-0794, 2014 WL 117316
(Ariz. App. Jan. 14, 2014) (mem. decision).
¶3 Williams petitioned the superior court for post-conviction
relief, arguing his trial counsel provided ineffective assistance. Williams's
defense was that he was at a gas station at the time of the shooting, and his
petition asserted that his "attorney did not investigate his alibi[.]" Williams
argued that due to his lawyer's failure to investigate, he was unable to raise
an alibi defense, which, he contended, would have resulted in reasonable
doubt as to his guilt. The superior court found no colorable claim for relief
and dismissed the petition. Williams timely filed a petition for review. We
review for an abuse of discretion. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19
(2012) (citation omitted).
¶4 To state a colorable claim of ineffective assistance of counsel,
a defendant must show that his lawyer's performance fell below objectively
reasonable standards and that the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v.
Nash, 143 Ariz. 392, 397-98 (1985) (adopting Strickland test). "The petitioner
must offer some demonstration that the attorney's representation fell below
that of the prevailing objective standards . . . [and] some evidence of a
reasonable probability that, but for counsel's unprofessional errors, the
outcome of the [proceeding] would have been different." State v. Rosario,
195 Ariz. 264, 268, ¶ 23 (App. 1999). "[P]roof of ineffectiveness of counsel
must be a demonstrable reality rather than a matter of speculation." State
v. Vaughn, 163 Ariz. 200, 205 (App. 1989) (citing State v. Meeker, 143 Ariz.
256, 264 (1984)).
¶5 The superior court dismissed the petition for post-conviction
relief in an order that clearly identified and correctly ruled upon the issues
raised. Specifically, the court properly determined that Williams's
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STATE v. WILLIAMS
Decision of the Court
speculation was insufficient to establish a colorable claim. Further, the
court did so in a thorough, well-reasoned manner that will allow any future
court to understand the court's rulings. Under these circumstances, "[n]o
useful purpose would be served by this court rehashing the trial court's
correct ruling in a written decision." State v. Whipple, 177 Ariz. 272, 274
(App. 1993). Therefore, we adopt the superior court's ruling.1
¶6 We also decline Williams's invitation to review for
fundamental error. A petitioner is not entitled to fundamental error review
in a Rule 32 proceeding. State v. Swoopes, 216 Ariz. 390, 403, ¶ 41 (App.
2007). Moreover, in Williams's direct appeal, we conducted a review and
found no reversible error. State v. Williams, 1 CA-CR 12-0794, 2014 WL
117316, at *3, ¶ 12 (Ariz. App. Jan. 14, 2014) (mem. decision).
¶7 For the foregoing reasons, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
1 In his petition for review, Williams also argues his lawyer was
ineffective for failing to request an alibi defense jury instruction. A petition
for review may not present issues not first presented to the superior court.
See Ariz. R. Crim. P. 32.9(c)(1)(ii); State v. Bortz, 169 Ariz. 575, 577 (App.
1991) (citation omitted). Williams did not raise this argument in the
superior court; accordingly, we do not address it.
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