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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Respondent
,

v.

MICHAEL ANTHONY JEFFERSON
, Petitioner

.

No. 1 CA

- CR 16

- 0067 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR 2010

- 135286

- 001 The Honorable Daniel J. Kiley
, Judge

REVIEW GRANTED; RELI EF DENIED

COUNSEL
Maricopa County Attorney’ s Office , Phoenix By Diane Meloche Counsel for Respondent

Michael Anthony Jefferson
, Eloy Petitioner FILED 10-31-2017STATE v. JEFFERSON Decision of the Court

2 MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court, in which Judge Kenton D. Jones and Chief Judge Samuel A. Thumma joined.

D O W N I E , Judge:

¶1 Michael Anthony Jefferson petitions for review from the dismissal of his petition f or post

- conviction relief. For the following

reasons, we grant review but deny relief.

¶2 On October 26, 2011, Jefferson was con victed
, after a jury trial, of illegal control of an enterprise, money laundering, three counts of aggravated taking identity of another, fraudulent schemes and artifices, and trafficking in the identi t y of another. The jury found multiple aggravating factors. Jefferson was sentenced to a total of 31.5 years in prison

. ¶3 Jefferson was initially represented by counsel at trial . On the third day of trial, though, he waived his right to counsel a nd chose to represent himself. Appointed counsel remain ed in an advisory capacity. On the ninth day of trial , Jefferson fled to Mexico
, and the t rial continued in his absence. The court had previously warned Jefferson that this could occur. Ad visory counsel resumed representation of Jefferson through closing arguments and the verdict

. Upon his return from Mexico, Jefferson was taken into custody

. H e elected to represent himself at sentenc ing.

¶4 During and after trial, Jefferson filed numerous motions for mistrial, motions to vacate, and motions to compel discovery . He also filed misconduct complaints against the trial judge and appointed appellate counsel. 1 Jefferson alleged
, inter alia : illegal search and seizure ; prosecutorial misconduc t and vindictiveness ; illegal suppression of exculpatory evidence ; judicial misconduct ; ineffective assistance of counsel ; and that he was assaulted while in custody

. The trial judge recused herself from the sentencing hearing.

1 Neither comp laint resulted in action against the judge or counsel

.STATE v. JEFFERSON Decision of the Court

3 ¶5 After sentencing, Jefferson ’s appointed appellate counsel filed a direct appeal
, a rguing : (1) the court should have sua sponte instructed the jury it could not consider prior convictions as evidence of guilt ; 2 (2) Jefferson was i nvoluntarily absen t from trial; (3) the trial court applied the wrong standard in findi ng three historical prior felony convictions ; and (4) ineffective a ssistance of advisory counsel. This C ourt affirmed Jefferson’s convictions and sentence s

. The Arizona Supreme Court de nied review.

¶6 Jefferson’s first appointed post

- conviction relief counsel, after reviewing the record
, found no me ritorious claims. Jefferson filed a pro se petition on May 6, 2016
, alleging ineffective assistance of trial counsel a nd direct appeal counsel. The State filed a response
, and Jefferson filed a reply. Due to a conflict of interest, new counsel was appointed to represent Jefferson and to review the record. The second attorney also found no viable issues. The superior c ourt dismissed the petition for po st

- conviction relief
, concluding that Jefferson had simply re characterized claims that could have been raised on direct appeal as ineffective assistance of counsel claims
, and further, that the claims lacked merit, even if not precluded.

¶7 This C ourt will not reverse the superior court’s decision absent an abuse of discretion. State v. Schrock , 149 Ariz. 433, 441 (1986). Generally, a trial court abuses its discretion if it commits an error of law in reaching its decision or the record lacks substantial support for the court’s decision. State v. Cowles, 207 Ariz. 8, 9 , ¶ 3 (App. 2004).

¶8 Jefferson identifies t he following cl aims for review: (1) whether the court erred in finding that the ineffective assistance claims related to alleged constitutional violations and hearsay evidence were precluded; (2) whether the court erred by not conduct ing an evidentiary hearing on the cla im that counsel was ineffective by failing to investigate and move for dismissal due to “ prejudicial pre

- indictment delay ; ” (3) whether counsel was ineffective by failing to seek dismissal on the basis of prosecutorial vindictiveness ; (4) counsel’s alleged failure to investigate , conduct interview s , and file a motion to suppress ; (5) counsel’s alleged failure to investigate evidence of police brutality ; (6) counsel’s failure to suppress evidence or prevent the suppression of evidence ; (7) counsel’s failure to object to the court’s refusal to grant a continuance so h e could hire a private attorney ; (8) counsel’s alleged tampering with a j ury member on the elevator during voir dire ; (9) counsel’s failure to contact him when the prosecutor filed a notice of cha nge of judge; (10) counsel’s failure to request

2 As Jefferson was questioning a witness, he elicited evidence about his probation status and prior conviction.STATE v. JEFFERSON Decision of the Court

4 a new trial, mistrial
, or dismissal after the trial judge recused herself before sentencing ; (11) counsel’s failure to object to inadmissible hearsay ; (12) counsel’s failure to o bject to alleged ly false testimony ; (13) counsel’s failure
to cross

- examine the State’s witnesses, requiring Jeff erson to represent himself ; (14) counsel’s failure to object when the judge and prosecutor purportedly con fiscated a jury list ; (15) counsel’s failure to file a motion for discovery regarding a detective’s record of misconduct; and (16) appellate counsel’s failure to ra ise meritorious claims on appeal as directed by Jefferson.

¶9 Jefferson couches each of his claims as an ineffective assistance of counsel allegati on. To the extent he is attempting to litigate substantive legal issues that could or should have been raised on direct appeal, the superior court correctly deemed those issues precluded

. Ariz. R. Crim. P. 32.2(a). And to the extent Jefferson is allegin g deficient performance by advisory counsel, th at is not a cognizable claim. S ee S tate v. Russell , 175 Ariz. 529 , 531 (App. 1993).

¶10 To state a colorable claim of ineffective assistance of counsel, a defendant must demonstrate 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); State v. Nash , 143 Ariz. 392, 397 (1985). To show 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.” Strickland , 466 U.S

. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id . If a defendant fails to make a sufficient showing on either prong of the Strickland test, the trial court need not determine whether the defendant satisfied the other prong. State v. Salazar , 146 Ariz. 540, 541 (1985).

¶11 Setting aside the fact that Jefferson chose to represent himself for much of the trial and filed numerous pro se motions, he has provided no factual basis to establish that counsel was ineffective. Ineffective assistance of counsel “ must be a demonstrable reality rathe r than a matter of speculation. ” State v. McDaniel , 136 Ariz. 188, 198 (1983). The superior court examined each of Jefferson’s claims and found them to be with out merit. This court discerns no abuse of discretion.

¶12 Jefferson alleges his appellate counsel was ineffective by failing to raise every issue he directed her to present. But a petitioner “must offer evidence of a reasonable probability that but for counsel ’ s unprofessional errors, the outcome of the appeal would have beenSTATE v. JEFFERSON Decision of the Court

5 different.” Stat e v. Herrera , 183 Ariz. 642, 647 (App. 1995 )

. Counsel is not constitutiona lly required to raise every non

- f rivolous issue on appeal if she determine s “as a matter of professional judgment” not to present those issues. Jones v. Barnes , 463 U.S. 745, 751 ( 1983). Jefferson has provided no evidence that appellate counsel ’s conduct fell below prevailing professional

norms.
¶13 The superior court did not err in concluding that Jefferson’s claims were without merit and that he failed to make the showing required b y Strickland

. We therefore grant review but deny relief.