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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ALPHONSO TAYLOR, Petitioner.
No. 1 CA-CR 21-0427 PRPC
FILED 9-13-2022
Appeal from the Superior Court in Maricopa County
No. CR2013-003380-001
The Honorable Jay R. Adleman, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Desiree Kerfoot
Counsel for Respondent
Alphonso Taylor, Tucson
Petitioner
STATE v. TAYLOR
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.
F U R U Y A , Judge:
¶1 Alphonso Taylor petitions for review from the superior
court’s summary dismissal of his petition for post-conviction relief. Because
Taylor did not state a colorable claim of ineffective assistance of trial
counsel, we accept review but deny relief.
FACTS AND PROCEDURAL HISTORY
¶2 The State charged Taylor with one count each of conspiracy
to commit transportation of marijuana for sale in an amount over the
statutory threshold, a Class 2 felony, transportation of marijuana for sale in
an amount over the statutory threshold, a Class 2 felony, and illegally
conducting an enterprise, a Class 3 felony. The evidence at trial showed that
Taylor made statements consistent with drug trafficking, he had
connections to a motorcycle club known to engage in such conduct, and he
was caught transporting 594 pounds of marijuana in his vehicle.
¶3 At trial, Taylor chose not to testify and failed to appear for the
final day of jury deliberations. The jury found Taylor guilty as charged and
found aggravating factors applied. Authorities eventually arrested Taylor
in another state and extradited him back to Arizona. At sentencing, the
superior court found Taylor had two prior felony convictions and
sentenced him to an aggregate term of nine years’ imprisonment.
¶4 Appellate counsel subsequently avowed to thoroughly
reviewing the record and, finding no arguable questions of law, filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967). Taylor filed a pro se
supplemental brief, arguing the superior court should have excluded the
marijuana evidence based on a defect in the chain of custody, the court
provided misleading jury instructions, and insufficient evidence supported
his convictions. We found no error and affirmed Taylor’s convictions and
sentences. State v. Taylor, 1 CA-CR 18-0690, 2019 WL 5828856, at *4 ¶ 18
(Ariz. App. Nov. 7, 2019).
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STATE v. TAYLOR
Decision of the Court
¶5 Taylor filed a timely notice of post-conviction relief and
appointed counsel filed a notice of completion stating that she reviewed the
record but was “unable to find a colorable issue to submit to the court.”
Taylor filed a pro se petition for post-conviction relief, arguing trial counsel
provided ineffective assistance by failing to inform him of his right to
testify, preventing him from testifying, and allowing the superior court to
impose illegal sentences. The court summarily dismissed the petition,
finding no colorable claim for relief. This petition for review followed.
DISCUSSION
¶6 Taylor argues the superior court erred by summarily
dismissing his petition for post-conviction relief, reasserting his claim that
trial counsel provided ineffective assistance by failing to inform him of his
right to testify and preventing him from exercising that right. We review
the court’s summary dismissal of a post-conviction relief proceeding for an
abuse of discretion. See State v. Bennett, 213 Ariz. 562, 566 ¶ 17 (2006).
¶7 A criminal defendant’s constitutional right to a fair trial
includes the right to effective assistance of counsel. See Strickland v.
Washington, 466 U.S. 668, 685–86 (1984), superseded by statute on other grounds.
To state a colorable claim of ineffective assistance of counsel, a defendant
must show that counsel’s conduct fell below an objective standard of
reasonableness and that he suffered prejudice. See State v. Bigger, 251 Ariz.
402, 407 ¶ 8 (2021). Because a defendant must demonstrate both deficient
representation and prejudice to establish a successful claim, a court may
reject the claim based on the defendant’s failure to satisfy either
requirement. See State v. Pandeli, 242 Ariz. 175, 180–81 ¶ 6 (2017).
¶8 While the decision of whether to testify at trial is “exclusively
the province of the accused,” State v. Nirschel, 155 Ariz. 206, 208 (1987), the
defendant waives that right if he does not make “his desire to testify known
at trial, not as an afterthought,” State v. Allie, 147 Ariz. 320, 328 (1985). Here,
Taylor was present when the superior court addressed his right to testify
with the jury and did not request further clarification. At the close of the
State’s case, trial counsel stated that “based on, at this point, Mr. Taylor’s
observations, as far as the State’s case, he has indicated to me he does not
intend to testify.” Taylor did not object to counsel’s statements and did not
express a desire to testify when counsel announced that the defense would
present no evidence. The record suggests that Taylor knew of his right to
testify and chose not to exercise that right based on the State’s evidence.
Nothing from the record indicates counsel improperly interfered, or had
any demonstrable impact, on Taylor’s decision not to testify. See State v.
3
STATE v. TAYLOR
Decision of the Court
Tison, 129 Ariz. 546, 556 (1981) (“[P]roof of ineffectiveness must be a
demonstrable reality not merely a matter of speculation.”). The court
properly rejected Taylor’s claim of ineffective assistance of counsel as non-
colorable.
¶9 Taylor raises new ineffective assistance of trial counsel claims
for the first time in his petition for review. He argues the superior court
dismissed the proceeding before he received the grand jury transcript and
prevented him from amending the petition for post-conviction relief to
contain the additional claims. Taylor, however, did not request the grand
jury transcript until months after filing the petition for post-conviction relief
and did not request leave to file an amended petition. Thus, the court did
not err in making its finding based solely on the claims presented in the
petition for post-conviction relief. See Ariz. R. Crim. P. 32.9(d), 32.11(a). We
will not consider any alleged instances of ineffective assistance of counsel
presented for the first time in the petition for review, and need not address
them on their merits. See Ariz. R. Crim. P. 32.16(c)(2)(B); State v. Ramirez, 126
Ariz. 464, 468 (App. 1980).
¶10 Finally, Taylor’s petition for review abandons any mention of
his claim that trial counsel provided ineffective assistance at sentencing. “A
party’s failure to raise any issue that could be raised in the petition for
review or cross-petition for review constitutes a waiver of appellate review
of that issue.” Ariz. R. Crim. P. 32.16(c)(4). We therefore deem any such
claim waived.
CONCLUSION
¶11 We grant review and deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
4