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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

GEORGE DENTON WEATHERFORD, Petitioner.

No. 1 CA-CR 13-0768 PRPC

Appeal from the Superior Court in Pima County

No. CR20092354-001 and CR20094105-001

The Honorable Jane L. Eikleberry, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Pima County Attorney’s Office, Tucson

By Barbara LaWall

Counsel for Respondent

Higgins & Higgins, P.C., Tucson

By Harold L. Higgins, Jr. 

Counsel for Petitioner
STATE v. WEATHERFORD

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court, 

in which Judge Patricia A. Orozco and Judge Maurice Portley joined.

D O W N I E, Judge:

¶1 George Weatherford seeks review of the dismissal of his 

petition for post-conviction relief. For the following reasons, we grant 

review but deny relief. 

¶2 A jury found Weatherford guilty of four counts of aggravated 

driving under the influence (“DUI”), two counts each of criminal damage 

and endangerment and one count each of unlawful flight, first degree 

burglary, and theft. As part of that same proceeding, the trial court found

Weatherford guilty of two counts of misconduct involving weapons. The 

court sentenced Weatherford to an aggregate term of 63.25 years’

imprisonment, and we affirmed his convictions and sentences on direct 

appeal. Weatherford now seeks review of the summary dismissal of his 

first petition for post-conviction relief. We have jurisdiction pursuant to 

Arizona Revised Statutes (“A.R.S.”) section 13-4239(C) and Arizona Rule of 

Criminal Procedure 32.9(c).

¶3 Weatherford presents three ineffective assistance of counsel

claims, arguing: (1) his pretrial attorney was ineffective in requesting 

consolidation; (2) trial counsel was ineffective by failing to interview 

witnesses, and (3) trial counsel was ineffective by not demanding that the 

jury determine whether he committed the offenses while on community 

supervision for a prior felony conviction.

¶4 “Defendants are not guaranteed perfect counsel, only 

competent counsel.” State v. Valdez, 160 Ariz. 9, 15 (1989), abrogated on other 

grounds by Krone v. Hotham, 181 Ariz. 364 (1995). To state a colorable 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). If a defendant fails to make a sufficient showing of

either prong of this test, the trial court need not determine whether the 

other prong has been satisfied. State v. Salazar, 146 Ariz. 540, 541 (1985).
STATE v. WEATHERFORD

Decision of the Court

3

¶5 To demonstrate 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. “[T]he showing must be that of a provable 

reality, not mere speculation.” State v. Rosario, 195 Ariz. 264, 268, ¶ 23 (App. 

1999). There is a strong presumption that counsel’s actions constitute sound 

trial strategy. State v. Stone, 151 Ariz. 455, 461 (App. 1986). “Defense 

counsel’s determinations of trial strategy, even if later proven unsuccessful, 

are not ineffective assistance of counsel.” Valdez, 160 Ariz. at 15. 

¶6 Weatherford argues his pretrial lawyer was ineffective 

because she moved to consolidate the case with the burglary and theft

charges (“the burglary case”) with the case involving the remaining counts 

(“the DUI case”). The trial court had set both cases for trial, with the DUI

trial taking place the week after the trial in the burglary case. Defense 

counsel moved to continue both trials and also to consolidate the trials

under Rule 13.3. She argued the cases were “based on the same conduct or 

are otherwise connected together in their commission” and that all of the 

events took place on the same day; officers investigating the DUI case found 

items taken in the burglary; and “[m]uch [of] the same evidence is going to 

be presented in each case.” Finally, counsel argued consolidation would 

promote judicial economy and shorten the total time needed to try all of the 

charges. The trial court granted the requests to continue and consolidate. 

¶7 Weatherford argues that, from a defense perspective, there 

was no valid reason to seek consolidation and that consolidation led to the 

jury hearing highly prejudicial evidence from the DUI case that would not 

have been admitted at a separate trial of the burglary case, including: (1)

his flight from law enforcement; (2) his agitation, aggressiveness, and 

profanity when arrested in the DUI case; (3) his blood alcohol 

concentration; (4) his two prior DUI convictions and the fact he was driving 

on a suspended license; and (5) his disturbance of the peace at a 

“gentlemen’s club,” where he was asked to leave shortly before the events 

underlying the DUI case. 

¶8 We find no abuse of discretion in the trial court’s 

determination that seeking to consolidate the trials did not constitute 

ineffective assistance of counsel. “[I]n the interest of judicial economy, joint 

trials are the rule rather than the exception.” State v. Van Winkle, 186 Ariz. 

336, 339 (1996). The trial court ruled that defense counsel’s reasons for 

moving to consolidate were valid, noted that all of the offenses occurred on 
STATE v. WEATHERFORD

Decision of the Court

4

the same day, and specifically found that “much of the same evidence 

would have been admissible had the cases been tried separately.” 

¶9 Even if defense counsel’s consolidation request fell below 

objectively reasonable standards, Weatherford failed to demonstrate the 

requisite prejudice. See Strickland, 466 U.S. at 687. Although the evidence 

he identifies may have been prejudicial, he has not established that it was 

so unfairly prejudicial that it denied him a fair trial. The judge who ruled 

on Weatherford’s petition for post-conviction relief presided over his trial 

and was thus well-equipped to determine whether any prejudice arose

from consolidation. And the record suggests no reasonable probability that 

a separate trial in the burglary case would have produced a different 

outcome. The burglary took place only hours before the DUI-related 

offenses; investigators found property from the burglary in the vehicle 

Weatherford was driving at the time of his DUI arrest, and Weatherford’s

DNA profile matched blood found at the burglary scene. Furthermore, the 

court instructed the jury that each count was a separate and distinct offense; 

that it must decide each count separately and based only on the evidence 

and law related to that count; and that its decision on any count could not 

influence its decision on any other count. The court also gave an instruction 

that limited consideration of the prior DUIs to the question of whether 

Weatherford had two prior DUIs. We presume that jurors follow their 

instructions. State v. Dunlap, 187 Ariz. 441, 461 (App. 1996). 

¶10 Weatherford next argues trial counsel was ineffective by 

failing to interview prosecution witnesses before trial. His only specific 

substantive argument, though, is about the failure to interview 

investigators in the burglary case, and then only in the context of the DNA 

evidence. 

¶11 Investigators initially failed to notice a blood stain on the wall 

of the residence where the burglary occurred. It was only after the 

homeowner contacted police that an investigator returned to the scene days 

later and obtained a sample of the blood. Weatherford argues that by 

failing to interview the investigators, his trial attorney missed the 

opportunity to discredit the DNA evidence and raise questions about how 

and when the blood came to be in the residence. The trial court, however,

determined that defense counsel “thoroughly and effectively” crossexamined the witnesses at trial and made clear to the jury that investigators 

failed to find the blood stain during their initial investigation. The court 

concluded:
STATE v. WEATHERFORD

Decision of the Court

5

The State’s evidence was overwhelming, and there is no 

reason to think that pre-trial interviews would have bolstered 

cross-examination in any way. Petitioner’s DNA was found 

on the burglary victim’s wall, and a gun stolen from her home 

was found in Petitioner’s vehicle on the same day her home 

was burglarized. 

¶12 We again find no abuse of discretion. Defense counsel had 

the investigative reports and made it abundantly clear through crossexamination that investigators missed what presumably was an obvious 

blood stain on the wall when they examined the residence on the date of 

the incident. Defense counsel stressed this issue in closing argument and 

suggested there was no evidence the blood was even present during the 

initial investigation. Whether pretrial interviews would have revealed 

additional grounds for attacking the DNA evidence is wholly speculative. 

Under these circumstances, Weatherford has failed to show that counsel’s 

performance fell below objectively reasonable standards or that he suffered 

corresponding prejudice.

¶13 Finally, shortly after the jury returned its verdicts, the parties, 

without objection, tried the issue of Weatherford’s release status to the 

court. The court found that Weatherford committed the offenses while on 

community supervision for a prior felony conviction, which made the 

presumptive sentence the minimum sentence the court could impose for 

each count. A.R.S. § 13-604.02(B) (2008).

1 

¶14 Weatherford argues counsel was ineffective in not

demanding that the jury determine his release status. We agree that 

Weatherford’s release status was a matter for the jury absent a valid waiver. 

Any fact, other than the fact of a prior conviction, that increases the 

prescribed statutory minimum penalty must be submitted to a jury and 

proved beyond a reasonable doubt. Alleyne v. United States, 133 S. Ct. 2151, 

2160 (2013); State v. Large, 234 Ariz. 274, 278, ¶ 12 (App. 2014). This includes 

a defendant’s release status because it makes the presumptive sentence the 

prescribed statutory minimum sentence. Large, 234 Ariz. at 279-80, ¶¶ 13-

16. Even so, Weatherford has not demonstrated the requisite prejudice. 

The State proved his release status with an Arizona Department of 

Corrections “pen pack” and established that Weatherford began a term of 

 

1 Although Weatherford cites A.R.S. § 13-708(C), the version of A.R.S. 

§ 13-708 that includes this provision did not become effective until January 

1, 2009. Weatherford committed the offenses on July 3, 2008. Therefore, 

A.R.S. § 13-604.02(B) (2008) is the applicable statute. 
STATE v. WEATHERFORD

Decision of the Court

6

community supervision approximately two months before he committed 

the instant offenses. No reasonable juror could have found Weatherford 

was not on community supervision when he committed the instant

offenses. As a result, no prejudice arises from the failure to submit the 

question to the jury. See id. at 280, ¶ 19.

CONCLUSION

¶15 For the reasons stated, we grant review but deny relief.