State v. Bigger

251 Ariz. 402

492 P.3d 1020

STATE of Arizona, Respondent,

v.Ronald Bruce BIGGER, Petitioner.

No. CR-20-0383-PR

Supreme Court of Arizona.

Filed August 16, 2021

Kent P. Volkmer, Pinal County Attorney, Geraldine L. Roll (argued), Deputy County Attorney, Florence, Attorneys for State of Arizona

David J. Euchner (argued), Pima County Public Defender's Office, Tucson, Attorney for Ronald Bruce Bigger

Amy Knight, Knight Law Firm PC, Tucson, Attorney for Amicus Curiae Arizona Attorneys for Criminal Justice

Timothy J. Agan, Kerri L. Chamberlin, Office of the Legal Advocate, Phoenix; Sandra L.J. Diehl, Coconino County Public Defender's Office, Flagstaff, Attorneys for Amicus Curiae Arizona Public Defender Association

Mark Brnovich, Arizona Attorney General, Nicholas Klingerman (argued), Section Chief Counsel, Lindsay St. John, Assistant Attorney General, Tucson, Attorneys for Amicus Curiae Arizona Attorney General

JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, JUSTICES BOLICK, BEENE, and MONTGOMERY, and JUDGE SWANN joined.^*

JUSTICE LOPEZ, opinion of the Court:

¶1 We consider whether (1) a defendant must present a standard of care expert affidavit to support his ineffective assistance of counsel ("IAC") claim; (2) Perry v. New Hampshire , 565 U.S. 228, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012), caused a significant change in Arizona law; and (3) A.R.S. § 13-4234(G) supplements rather than conflicts with Arizona Rule of Criminal Procedure 32.4. We answer each inquiry in the negative.

BACKGROUND

¶2 Ronald Bigger was convicted of first degree murder and conspiracy to commit first degree murder and was sentenced to concurrent prison terms of natural life. The court of appeals affirmed his convictions and sentences on March 30, 2012. On May 2, 2012, Bigger filed a motion for an extension of time for filing his notice of post-conviction relief ("PCR"), which the trial court granted. Bigger filed his notice on May 21, 2012, which was untimely. Due to multiple extensions, he did not file his PCR petition until January 2016.

¶3 In his petition, Bigger argued that he received IAC during trial, and that Perry —which addressed witness identification evidence—constituted a significant change in the law that would probably overturn his conviction or sentence. See Ariz. R. Crim. P. 32.1(g). The trial court summarily denied relief, and Bigger appealed.

¶4 The court of appeals considered the timeliness of Bigger's PCR petition, his IAC claims, and whether Perry caused a significant change in Arizona law. First, the court found that Bigger's PCR petition was not time barred, pursuant to Arizona Rules of Criminal Procedure 32.1(f) and 32.4, because the untimely filing of the notice of PCR was not his fault. The court so held despite § 13-4234(G), which provides that "time limits are jurisdictional" and requires dismissal of an untimely filed notice. Second, the court agreed with the trial court that Bigger had not proven his IAC claims because he "had not offered an affidavit from an expert witness to support his claims or otherwise shown that counsel's decisions, even if ultimately unsuccessful, were the result of a lack of experience or preparation." Third, the court held that Perry was not a significant change in the law; rather, State v. Nottingham , 231 Ariz. 21, 289 P.3d 949 (App. 2012) —a case interpreting Perry that required a specific, cautionary jury instruction on the reliability of an eyewitness identification even absent improper state conduct—modified Arizona law. However, Bigger's case had become final before Nottingham was decided, and Nottingham did not apply retroactively. Consequently, the court concluded that the trial court did not abuse its discretion in summarily denying relief.

¶5 We granted review to (1) elucidate the requirements for presenting a colorable IAC claim, (2) clarify the impact of Perry on Arizona law, and (3) determine the constitutionality of § 13-4234(G) as it relates to untimely PCR filings. These are recurring issues of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

¶6 We review a trial court's ruling on a PCR petition for an abuse of discretion, which occurs if the court makes an error of law or fails to adequately investigate the facts necessary to support its decision. State v. Pandeli , 242 Ariz. 175, 180 ¶ 4, 394 P.3d 2, 7 (2017). We review legal conclusions de novo. Id.

I.

¶7 We first consider the standard a defendant must satisfy to establish a colorable IAC claim.

A.

¶8 To prevail on an IAC claim, a defendant must demonstrate that counsel's conduct fell below an objective standard of reasonableness and that he was prejudiced thereby. See Strickland v. Washington , 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Denz , 232 Ariz. 441, 443 ¶ 6, 306 P.3d 98, 100 (App. 2013). "This inquiry focuses on the ‘practice and expectations of the legal community,’ and asks, in light of all the circumstances, whether counsel's performance was reasonable under prevailing professional norms." Pandeli , 242 Ariz. at 180 ¶ 5, 394 P.3d at 7 (quoting Hinton v. Alabama , 571 U.S. 263, 273, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014) ); see also Strickland , 466 U.S. at 687–88, 104 S.Ct. 2052 (noting that more specific guidelines beyond whether counsel's representation fell below an objective standard of reasonableness are not appropriate).

¶9 "The 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." State v. Amaral , 239 Ariz. 217, 220 ¶ 11, 368 P.3d 925, 928 (2016). The claim is subject to summary dismissal "[i]f the alleged facts would not have probably changed the verdict or sentence." Id. ; see also Strickland , 466 U.S. at 694, 104 S.Ct. 2052 (finding that a challenger must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"). If a defendant presents a colorable claim, he is entitled to a hearing to determine whether counsel rendered effective assistance. See Ariz. R. Crim. P. 32.13 ;¹ State v. Bennett , 213 Ariz. 562, 568 ¶ 30, 146 P.3d 63, 69 (2006).

¶10 "A defendant's lawyers are not deficient merely for making errors." State v. Miller , 251 Ariz. 99, 102 ¶ 10, 485 P.3d 554, 557 (2021). "Representation falls below the ‘prevailing professional norms’ of the legal community if counsel's performance was unreasonable under the circumstances." Id. (quoting Hinton , 571 U.S. at 273, 134 S.Ct. 1081 ). Often, the deficiency inquiry will focus on counsel's defense strategy. We presume counsel acted properly unless a defendant can show that "counsel's decision was not a tactical one but, rather, revealed ineptitude, inexperience or lack of preparation." State v. Goswick , 142 Ariz. 582, 586, 691 P.2d 673, 677 (1984) ; see also State v. Valdez , 167 Ariz. 328, 329–30, 806 P.2d 1376, 1377-78 (1991) (noting that a strong presumption exists that defense counsel provided effective assistance).

¶11 When evaluating the reasonableness of counsel's strategic decisions, the foundational inquiry is the rationale for the decision. See generally, e.g. , Pandeli , 242 Ariz. at 181–91 ¶¶ 9–68, 394 P.3d at 8-18 (evaluating the reasoning behind counsel's decisions); Goswick , 142 Ariz. at 586, 691 P.2d at 677 (considering, for example, that "[t]here are a number of reasons why an attorney may choose not to call a witness"); Strickland , 466 U.S. at 689, 104 S.Ct. 2052 (noting that decisions must be evaluated from counsel's perspective at the time). The scrutiny of counsel's performance must be highly deferential and "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight." Strickland , 466 U.S. at 689, 104 S.Ct. 2052.

¶12 Notably, "[m]atters of trial strategy and tactics are committed to defense counsel's judgment" and generally cannot serve as the basis for an IAC claim. State v. Beaty , 158 Ariz. 232, 250, 762 P.2d 519, 537 (1988) ; see also Pandeli , 242 Ariz. at 181 ¶ 8, 394 P.3d at 8 ("Simply disagreeing with strategy decisions cannot support a determination that representation was inadequate."); Strickland , 466 U.S. at 690, 104 S.Ct. 2052. However, tactical or strategic decisions by trial counsel are not incontrovertibly beyond a court's review. See, e.g. , State v. Gerlaugh , 144 Ariz. 449, 455, 698 P.2d 694, 700 (1985) (reasoning that "[d]isagreements in trial strategy will not support a claim of ineffective assistance so long as the challenged conduct has some reasoned basis" (emphasis added)); Pandeli , 242 Ariz. at 183 ¶ 21, 394 P.3d at 10 (rejecting IAC claim based on failure to cross-examine because it "was a strategic decision that defendant has not demonstrated falls below the level expected of a reasonably competent defense attorney"); Strickland , 466 U.S. at 681, 104 S.Ct. 2052 (listing relevant factors courts may consider in deciding whether certain strategic choices were reasonable, including "the experience of the attorney, the inconsistency of unpursued and pursued lines of defense, and the potential for prejudice from taking an unpursued line of defense").

¶13 Bigger argues that the trial court and court of appeals imposed a requirement for a standard of care expert affidavit to sustain his IAC claim. We disagree. The court of appeals’ opinion expressly refutes Bigger's contention:

Bigger had not shown counsel's decisions were other than tactical or that [counsel's ] performance had fallen below prevailing professional norms ... [and] Bigger had not offered "an affidavit from an expert witness" to support his claims or otherwise shown that counsel's decisions, even if ultimately unsuccessful, were the result of a lack of experience or preparation.

State v. Bigger , 250 Ariz....