No. 2 CA-CR 2017-0154-PR.


Court of Appeals of Arizona, Division Two.

Attorney(s) appearing for the Case

William G. Montgomery , Maricopa County Attorney, Phoenix, By Arthur Hazelton , Deputy County Attorney, Counsel for Petitioner.

Tyrone Mitchell, P.C., Phoenix, By Tyrone Mitchell Counsel for Respondent.

Judge Miller authored the decision of the Court, in which Presiding Judge Staring and Judge Espinosa concurred.



See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.


MILLER, Judge.

¶1 The state seeks review of the trial court's order granting Corey Shivers's petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). The state has not sustained its burden of establishing such abuse here.

¶2 After a jury trial, Shivers was convicted of one count each of threatening or intimidating and assisting a criminal street gang. The trial court sentenced him to concurrent, presumptive 11.5-year terms of imprisonment. His convictions and sentences were affirmed on appeal. State v. Shivers, No. 1 CA-CR 10-0975 (Ariz. App. July 12, 2012) (mem. decision).

¶3 Shivers thereafter sought post-conviction relief, arguing in his petition that he had received ineffective assistance of trial counsel based on counsel's failure "to timely disclose defense witnesses, including [an] expert witness, who were precluded from testifying at trial." After a hearing on the matter, the trial court determined counsel had been ineffective and granted Shivers a new trial. The state filed a petition for review, and this court remanded the matter to the trial court, noting that it was not clear "how or if the trial court found actual, non-speculative prejudice" arising from counsel's "failure to meet prevailing norms." State v. Shivers, No. 2 CA-CR 2015-0245-PR, ¶ 3 (Ariz. App. Feb. 24, 2016) (decision order).

¶4 On remand, the trial court expressly found Shivers had established "actual non-speculative prejudice." The court observed the evidence against Shivers had not been overwhelming and the investigating officers "had a number of admitted deficiencies in their investigation." The court concluded "[t]he jury would have benefited greatly from hearing another expert witness speak to the deficiencies of the investigation," particularly in light of the state's "grossly improper closing argument."

¶5 On review, the state argues "the trial court ignored this Court's order entirely." It also contends "Shivers failed to present any admissible evidence at the hearing to establish that witness testimony. . . would have changed the outcome at trial."1 As an initial matter, we disagree with the state's claim that the court disregarded our instructions. In our prior order we directed the court to "make specific findings" on the issue of ineffective assistance of counsel, "particularly regarding the prejudice prong." Id. ¶ 4. We noted the court could hold "an additional evidentiary hearing if necessary," but did not require it. Id. The court apparently did not find such a hearing necessary and made specific findings regarding prejudice, which we now review.

¶6 Our review of the trial court's factual findings "is limited to a determination of whether those findings are clearly erroneous." State v. Sasak, 178 Ariz. 182, 186, 871 P.2d 729, 733 (App. 1993). When "the trial court's ruling is based on substantial evidence, this court will affirm." Id. And, "[e]vidence is not insubstantial merely because testimony is conflicting or reasonable persons may draw different conclusions from the evidence." Id.; see also State v. Fritz, 157 Ariz. 139, 141, 755 P.2d 444, 446 (App. 1988) (trial court sole arbiter of witness credibility in post-conviction proceeding).

¶7 To establish prejudice in the context of an ineffective assistance claim, a petitioner must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Hinton v. Alabama, ___ U.S. ___, ___, 134 S.Ct. 1081, 1089 (2014), quoting Strickland v. Washington, 466 U.S. 688, 695 (1984). And if there is a reasonable probability that an expert witness "would have instilled in the jury a reasonable doubt" as to a defendant's guilt, but counsel failed to secure such a witness, a defendant may be prejudiced by the deficient performance. Id. at ___, 134 S. Ct. at 1089-90 (concluding prejudice possible when counsel used less-qualified expert due to erroneous belief about spending cap); State v. Denz, 232 Ariz. 441, ¶ 20, 306 P.3d 98, 104 (App. 2013) (failure to present expert testimony that would have contradicted state's evidence undermined confidence in conviction).

¶8 In this case, the trial court concluded that expert testimony from the defense would have changed the jury's view of "the evidentiary picture." Shivers's trial attorney testified at the evidentiary hearing that his proposed expert witness would have testified "this was not a gang-related case." Certainly Shivers's position in his Rule 32 proceeding would have been bolstered by additional evidence about the expert's proposed testimony. See Ariz. R. Crim. P. 32.5 ("Affidavits, records, or other evidence . . . supporting the allegations of the petition shall be attached to it."). But trial counsel's statements to the court were properly admitted at the evidentiary hearing and constitute sufficient evidence from which the court could conclude there was a reasonable probability the expert's testimony would have changed the outcome of the trial.

¶9 This is particularly so in light of Strickland's mandate that "[a] court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury." 466 U.S. at 695. "[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Id. at 696. The trial court noted the evidence in this case was not "overwhelming" and that it had directed verdict on one count, and had "seriously considered directed verdicts on both counts." The court also pointed out problems with the police investigation and the prosecutor's statements at trial. The state contends the court had thereby "identif[ied] new instances of ineffective assistance of trial counsel and trial error" and it lacked the authority to do so. But the court considered these errors in the context of its conclusion that Shivers had been prejudiced, not as additional grounds for relief.

¶10 In view of the record before us, and our deferential review of the ruling of the trial court, which had the opportunity to observe not only the witness at the evidentiary hearing but the trial as a whole, we cannot say the court abused its discretion in concluding Shivers was prejudiced by his counsel's conduct. See Sasak, 178 Ariz. at 186, 871 P.2d at 733 (appellate court reviews evidence at post-conviction-relief hearing favorable to trial court's ruling and defers to trial court in resolving conflicts in evidence).

¶11 Therefore, although we grant the petition for review, we deny relief.


1. To the extent the state attempts to argue counsel's performance was not deficient, or that Shivers waived the claim, we reject its assertions. As we noted in our prior decision, "Trial counsel's failure to meet prevailing norms is apparent from the record." Shivers, No. 2 CA-CR 2015-0245-PR, ¶ 3.


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