State v. Jones

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROBERT LEON JONES, JR., Petitioner.

No. 1 CA-CR 21-0529 PRPC
FILED 7-5-2022

Petition for Review from the Superior Court in Maricopa County
No. CR2018-000243-001
The Honorable Jay R. Adleman, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Respondent

Robert Leon Jones, Jr., Yuma
Petitioner
 STATE v. JONES
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Brian Y. Furuya joined.

P E R K I N S, Judge:

¶1 Robert Leon Jones, Jr., seeks review of the superior court’s
order denying his petition for post-conviction relief. For the following
reasons, we grant review but deny relief.

¶2 A Grand Jury indicted Jones in July 2018 on one count of
second-degree trafficking in stolen property, a class three felony. Jones
traded oxycodone pills for a recently stolen tablet, which his girlfriend later
pawned. The jury found Jones guilty, and the superior court sentenced him
to nine years’ imprisonment, as a category three repetitive offender. See
A.R.S. § 13-703(J).

¶3 We first dismissed Jones’s appeal for lack of jurisdiction
because he filed an untimely notice of appeal. Jones then received post-
conviction relief to file a delayed notice of appeal. Jones’s appellate counsel
filed a brief under Anders v. California, 386 U.S. 738 (1967), avowing that the
record presented no arguable questions of law. Jones filed a pro per
supplemental brief, arguing the court erred by admitting photographs of
the tablet and failing to provide a Willits instruction based on the police
officer’s failure to retain the tablet for forensic testing. We found no error
and affirmed Jones’s conviction and sentence. See State v. Jones, 1 CA-CR 20-
0081, 2020 WL 6578357, at *3, ¶¶ 14–16 (Ariz. App. Nov. 10, 2020) (mem.
decision).

¶4 Jones’s post-conviction relief counsel filed a notice of
completion, avowing she found no claims for relief. Jones then filed a pro
per petition for post-conviction relief and argued: (1) the superior court
erred when it gave a permissible inference jury instruction; and (2)
appellate counsel provided ineffective assistance by failing to assert this
argument on direct appeal. The court summarily dismissed Jones’s petition,
and this petition for review followed.

¶5 “We review for abuse of discretion the superior court’s denial
of post-conviction relief based on lack of a colorable claim.” State v. Bennett,

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 STATE v. JONES
Decision of the Court

213 Ariz. 562, 566, ¶ 17 (2006). A colorable claim is one that, if true, “would
probably have changed the verdict or sentence.” State v. Amaral, 239 Ariz.
217, 220, ¶¶ 10–11 (2016). To prevail on an ineffective assistance of appellate
counsel claim, a defendant must demonstrate “a reasonable probability that
but for counsel’s unprofessional errors, the outcome of the appeal would
have been different.” State v. Herrera, 183 Ariz. 642, 647 (App. 1995).

¶6 After reviewing the record, Jones’s appellate counsel filed a
brief in conformity with Anders. This filing triggered our review of the
entire record for reversible error, which ensures that a “defendant’s
constitutional rights to due process, equal protection, and effective
assistance of counsel are protected.” State v. Clark, 196 Ariz. 530, 537, ¶ 30
(App. 1999). Here, Jones fails to demonstrate how his appellate counsel’s
performance impacted the outcome of the appeal. The superior court thus
did not abuse its discretion when it summarily dismissed his claim.

¶7 We note that Jones failed to challenge the permissible
inference instruction in his pro per supplemental brief. The issue is thus
waived and precluded. See Ariz. R. Crim. P. 32.2(a)(3). Notwithstanding
waiver and preclusion, this claim provides no basis for relief. The superior
court instructed the jury with a non-mandatory, statutorily provided
inference. See A.R.S. § 13-2305(1) (“Proof of possession of property recently
stolen, unless satisfactorily explained, may give rise to an inference that the
person in possession of the property was aware of the risk that it had been
stolen or in some way participated in its theft.”) (emphasis added); State v.
Cole, 153 Ariz. 86, 89 (App. 1987) (permissible inference instructions are
constitutional). We therefore grant review but deny relief.

AMY M. WOOD • Clerk of the Court
FILED: AA

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