State v. Flake ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
BILL CLARK FLAKE, Petitioner.
No. 1 CA-CR 15-0634 PRPC
FILED 7-6-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2008-030778-001
The Honorable Steven P. Lynch, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Susan L. Luder
Counsel for Respondent
Robert J. Campos & Associates, PLC, Phoenix
By Robert J. Campos
Counsel for Petitioner
STATE v. FLAKE
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Patricia K. Norris and Chief Judge Michael J. Brown joined.
J O H N S E N, Judge:
¶1 Bill Clark Flake petitions for review of the partial denial 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 but deny relief.
¶2 A jury convicted Flake of five counts of sexual conduct with a
minor and one count of sexual abuse. The superior court imposed
consecutive prison terms totaling 55 years on three of the counts and placed
Flake on lifetime probation on the other three counts. On appeal, this court
affirmed the convictions, the sentences and the imposition of probation.
State v. Flake, 1 CA-CR 08-0859 (Ariz. App. Jun. 29, 2010) (mem. decision).
¶3 Flake filed a timely petition for post-conviction relief, raising
claims of ineffective assistance of counsel and seeking a new trial and
sentencing. The superior court granted an evidentiary hearing. Following
the hearing, the court ruled Flake had failed to prove he was prejudiced by
his counsel's alleged inadequate pretrial investigation and accordingly
denied Johnson's request for a new trial. The court, however, also ruled
Flake had established that his counsel had provided ineffective assistance
by failing to obtain a risk assessment for mitigation purposes and that his
counsel's deficient performance had prejudiced Flake at sentencing. Upon
re-sentencing, the superior court imposed consecutive mitigated prison
terms totaling 45 years on three of the counts and again placed Flake on
lifetime probation on the other three counts. This petition for review
followed.
¶4 On review, Flake argues the superior court erred in not
granting relief on his claims of ineffective assistance of counsel at trial. To
obtain relief on a claim of ineffective assistance of counsel, a defendant must
show that counsel's performance fell below objectively reasonable
standards and that the deficient performance prejudiced the defendant.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove prejudice, a
defendant must establish "that there is a reasonable probability that, but for
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STATE v. FLAKE
Decision of the Court
counsel's unprofessional errors, the result of the proceeding would have
been different." Id. at 694. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id.
¶5 We review a ruling on a petition for post-conviction relief for
abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006). When
the superior court finds a claim to be colorable and conducts an evidentiary
hearing, the defendant has the burden of proving all factual allegations by
a preponderance of the evidence. Ariz. R. Crim. P. 32.8(c). After an
evidentiary hearing, our review of the superior court's factual findings "is
limited to a determination of whether those findings are clearly erroneous."
State v. Sasak, 178 Ariz. 182, 186 (App. 1993). When "the trial court's ruling
is based on substantial evidence, this court will affirm." Id.
¶6 The superior court judge who ruled on the petition for post-
conviction relief was the same judge who presided at Flake's trial. Having
seen all the evidence and witnesses at trial, this judge was in the best
position to determine whether there is a reasonable probability that, but for
counsel's deficient performance, the outcome of the trial would have been
different. See Strickland, 466 U.S. at 695 (in determining prejudice, court
"must consider the totality of the evidence before the judge or jury"). Before
ruling on Flake's petition for post-conviction relief, the judge read the
original trial transcripts, reviewed the exhibits and heard Flake's trial
counsel's explanation of how he approached Flake's trial.
¶7 In his petition for post-conviction relief, Flake argued his
counsel was ineffective by failing to interview the State's witnesses before
trial about allegations that the victims had given inconsistent stories and
had accused other family members of similar acts of molestation. He
argued the trial outcome would have been different if his counsel had cross-
examined the witnesses about those matters. In reviewing his claim, the
superior court concluded that "the prevailing trial preparation standard
would mandate that pretrial witness interviews are completed by trial
defense counsel." But the court found that, because Flake's counsel had
"poked significant holes in witnesses' testimony" during the trial, the
outcome would not have been different if counsel had done the
investigation Flake argued should have performed.
¶8 Given all the evidence before the jury, including videotapes
of Flake admitting he had sexual contact with the victims, the record
supports the superior court's finding that Flake failed to demonstrate the
requisite prejudice to entitle him to a new trial, i.e., a reasonable probability
of a different outcome.
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STATE v. FLAKE
Decision of the Court
¶9 Flake also argues in his petition for review that the superior
court erred in ordering resentencing instead of requiring the State to renew
a pretrial plea offer. We do not address this claim because Flake did not
raise this issue in his petition for post-conviction relief. Flake first raised
his claim for reinstatement of the State's plea offer in a sentencing
memorandum he filed three months after the superior court's ruling on the
petition for post-conviction relief. A petition for review of Rule 32
proceedings may not present issues that were not timely raised in the
petition for post-conviction relief. State v. Ramirez, 126 Ariz. 464, 468 (App.
1980); see also Ariz. R. Crim. P. 32.9(c)(1)(ii) (requiring petition for review to
contain "issues which were decided by the trial court and which the
defendant wishes to present to the appellate court for review"); State v.
Smith, 184 Ariz. 456, 459 (1996) (holding no review for fundamental error in
a post-conviction relief proceeding).
¶10 Accordingly, although we grant review we deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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