State v. Calandra

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DAMON JOSEPH CALANDRA, Petitioner.

No. 1 CA-CR 23-0300 PRPC
FILED 3-19-2024

Petition for Review from the Superior Court in Yavapai County
No. V1300CR201980473
The Honorable Michael R. Bluff, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Yavapai County Attorney’s Office, Prescott
By Glen M. Asay
Counsel for Respondent

Damon Joseph Calandra, Winslow
Petitioner
 STATE v. CALANDRA
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Daniel J. Kiley delivered the decision of the Court, in which
Judge Kent E. Cattani and Judge D. Steven Williams joined.

K I L E Y, Judge:

¶1 Petitioner Damon Calandra petitions this court for review
from the dismissal of his petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
but deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 Calandra and his girlfriend, A.M., lived together in a trailer
owned by A.M’s father. One evening in 2019, after arguing for several
hours, A.M. told Calandra to move out. When Calandra called the sheriff’s
office to determine if he was legally required to move out, a sheriff’s deputy
informed him that landlord/tenant laws entitled him to 30 days’ notice
before he could be required to vacate the premises. Calandra then told A.M.
that he intended to stay for another month. Irritated, A.M. texted her boss,
who promised to send her son and some others to help.

¶3 A.M. told Calandra that others were on their way, adding,
“They’re armed, and they’re mad. They’re mad at you.” Calandra then
picked up a knife and began waving it around and cutting the bedsheets.
A.M. texted her boss to say she was afraid that Calandra might attack her.
A.M. also began using her phone to record Calandra.

¶4 A.M.’s boss called the police. When a sheriff’s deputy arrived
at the scene, he saw Calandra holding something in his hand. He called out
to him. Calandra dropped the object, later identified as a knife, and walked
away. When the deputy spoke to A.M., she was shaking and appeared
scared.

¶5 Calandra was charged with aggravated assault and
disorderly conduct. At trial, the recordings that A.M. made of Calandra’s
conduct that night were presented to the jury. The responding officer and
A.M. both testified. A.M. denied that she was frightened by Calandra’s
conduct that evening. When the prosecutor noted that she could be heard

2
 STATE v. CALANDRA
Decision of the Court

in one of the recordings stating that she was “afraid,” A.M. claimed that she
was not afraid that Calandra would harm her or anyone else. Instead, she
insisted, she was afraid that one of the people her boss sent to the scene
might harm Calandra or that Calandra would stab one of them in
self-defense.

¶6 The jury found Calandra guilty of aggravated assault and
disorderly conduct. Before sentencing, the superior court dismissed the
conviction for disorderly conduct after determining that the disorderly
conduct offense was a lesser included offense of aggravated assault. The
court sentenced Calandra to 7.5 years’ imprisonment for aggravated
assault. This court affirmed his conviction and sentence on direct appeal.
See State v. Calandra, 1 CA-CR 21-0049, 2022 WL 905008 (Ariz. App. Mar. 29,
2022) (mem. decision). Calandra then filed a petition for post-conviction
(“PCR”) relief in propria persona after his PCR counsel found no colorable
claims for relief. The superior court summarily denied the petition and
Calandra now seeks review. We have jurisdiction pursuant to Arizona Rule
of Criminal Procedure 32.16 and A.R.S. § 13-4239(C).

DISCUSSION

I. Claims that Calandra Could Have Raised on Direct Appeal Are
Precluded

¶7 Any claim a defendant could have raised on direct appeal is
precluded in a PCR proceeding. Ariz. R. Crim. P. 32.2(a); See State v. Macias, 249 Ariz. 335, 341, ¶ 20 (App. 2020). In his petition, Calandra argues, inter
alia, that the superior court erred by (1) allowing A.M. to testify at trial
because she was not a competent witness; (2) admitting A.M.’s prior
out-of-court statements; and (3) enhancing Calandra’s sentence in reliance
on certified court records to establish his prior convictions without
“corroborat[ion]” by witness testimony. Calandra also appears to challenge
the sufficiency of the evidence, arguing that “all of the testimony at trial by
[A.M.] was that” Calandra “only obtained a knife to defend himself,” not
to harm or threaten anyone else. Because these claims could have been
raised on direct appeal, they are precluded, and we decline to consider
them.

II. Calandra’s Cumulative Error Claim Is Not Cognizable Under
Arizona Law

¶8 Calandra also argues that the alleged instances of ineffective
assistance of counsel addressed below constitute cumulative error when
considered in the aggregate. Arizona does not recognize the doctrine of

3
 STATE v. CALANDRA
Decision of the Court

cumulative error outside the context of prosecutorial misconduct. See State
v. Hughes, 193 Ariz. 72, 78-79, ¶ 25 (1998) (noting that Arizona “does not
recognize the so-called cumulative error doctrine” except “when the court
is evaluating a claim that prosecutorial misconduct deprived [the]
defendant of a fair trial”) (citation omitted). Thus, as a matter of law,
Calandra is entitled to no relief on his claim of cumulative error by his own
counsel.

III. Calandra’s Claims of Ineffective Assistance of Counsel Fail

¶9 Calandra next raises four claims of ineffective assistance of
trial counsel. To state a colorable ineffective assistance of counsel (“IAC”)
claim, 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, 687-88
(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.

¶10 “[A] court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial
strategy.” Id. at 689 (cleaned up). To do this, a defendant must show that
counsel’s performance fell outside the acceptable “range of competence”
and failed to meet “an objective standard of reasonableness.” See id. at
687-88 (citation omitted). “In short, reviewing courts must be very cautious
in deeming trial counsel’s assistance ineffective when counsel’s challenged
acts or omissions might have a reasonable explanation.” State v. Pandeli, 242
Ariz. 175, 181, ¶ 7 (2017). A court may not grant relief on an IAC claim
absent a showing that “counsel took an approach that no competent lawyer
would have chosen.” Dunn v. Reeves, 594 U.S. 731, 739 (2021) (cleaned up).

A. Failure to Move to Strike A.M. as a Witness

¶11 Calandra first argues that his trial counsel was ineffective by
failing to “object” to A.M.’s testimony due to her purported lack of
“competency to testify.”

¶12 “Competency has to do with a witness’[s] capacity to observe,
recollect and communicate the subject of the testimony.” State v. Roberts, 139 Ariz. 117, 121 (App. 1983) (emphasis omitted). Under A.R.S. § 13-4061,
“[i]n any criminal trial[,] every person is competent to be a witness.”

4
 STATE v. CALANDRA
Decision of the Court

¶13 Calandra does not cite anything in the record to support his
claim that A.M. was not competent to testify. A review of the transcript of
her trial testimony gives no cause to doubt her competency. Although A.M.
testified that she was previously diagnosed with post-traumatic stress
disorder (“PTSD”) for reasons unrelated to Calandra, and further admitted
that her inability to recall certain matters could be attributed to her PTSD,
she was able to give substantive answers to most of the questions asked of
her. In denying Calandra’s PCR petition, the trial judge expressly found
that “for most of her testimony, [A.M.] was able to readily recall the events
of the evening.” In any event, a witness’s inability to recall information is a
matter to explore on cross-examination but does not, by itself, establish that
the witness is incompetent to testify. See Roberts, 139 Ariz. at 121 (noting
that witness credibility relates to “whether the witness’[s] testimony does
in fact accurately reflect what took place” and that a “witness may be
deemed competent to testify” even if “not very credible”); Zimmer v. Peters, 176 Ariz. 426, 429-30 (App. 1993) (finding witness competent to testify
although she admitted having “problems with her memory” and
emphasizing the “notable distinction between competency and
credibility”).

¶14 Further, A.M. provided testimony that was favorable to
Calandra, essentially recanting some of her statements to the deputy at the
scene and denying that Calandra’s actions that night caused her to fear for
her safety. Calandra cannot have been prejudiced by his counsel’s failure to
seek to preclude testimony favorable to the defense, and the absence of
prejudice is fatal to his IAC claim. See State v. Bennett, 213 Ariz. 562, 567, ¶
21 (2006). Calandra is entitled to no relief on his IAC claim to the extent that
it is based on his counsel’s failure to try to prevent A.M. from testifying on
grounds of incompetency.

B. Calandra Waived Claim Not Raised Below

¶15 Calandra next argues that his counsel was ineffective by
failing to “conduct an adequate pretrial investigation and appropriately
address [A.M.’s] mental health,” which could have been done had counsel
“sought consultation with a professional.” “[A] reasonable pretrial
investigation” that included “consult[ing] with a professional to
appropriately identify all the issues for trial,” Calandra contends, “would
unarguably have had a profound effect on the proceedings.”

¶16 A petition for review may not raise issues or claims that were
not first presented to the superior court. See Ariz. R. Crim. P. 32.16(c)(2)(B)
(requiring a petition for review to contain “a statement of issues the trial

5
 STATE v. CALANDRA
Decision of the Court

court decided”); State v. Andersen, 177 Ariz. 381, 385 (App. 1993) (noting that
claim not raised in PCR petition is not “subject to appellate review”); see also
State v. Swoopes, 216 Ariz. 390, 403, ¶¶ 40-42 (App. 2007) (holding that no
review for fundamental error exists in a PCR proceeding). In his petition for
review, Calandra never raised his “inadequate preparation” claim in his
PCR petition. Although Calandra argued below that counsel should have
retained a testifying expert to explain A.M.’s alleged “mental illness and its
complex aspects” to the jury, he never argued that counsel was deficient for
failing to retain a consulting expert as part of his trial preparation.
Calandra’s failure to argue below that his counsel was deficient in not
consulting a mental health expert while preparing for trial warrants
denying relief on this claim. See State v. Romero, 1 CA-CR 14-0859, 2016 WL
6802981, at *2, ¶ 7 (Ariz. App. Nov. 17, 2016) (mem. decision) (declining to
address arguments PCR defendant raised “in her petition for review that
she did not raise in her petition for post-conviction relief in the superior
court.

¶17 And even if Calandra could be said to have properly
preserved the claim that trial counsel was deficient by failing to consult
with a mental health expert prior to trial, he would be entitled to no relief.
A defendant asserting an IAC claim based on trial counsel’s inadequate trial
preparation must “show how [he] may have been prejudiced by any
purported shortcomings.” State v. Britson, 130 Ariz. 380, 383-84 (1981).
Although Calandra asserts, in conclusory terms, that consultation with a
mental health expert would “unarguably” have led to a different result, he
does not explain what a mental health expert might have told trial counsel
that would have helped him in defending this case. He does not suggest,
for example, that a mental health expert would have opined that A.M.’s
PTSD diagnosis affected the credibility of her testimony. And since, as
noted above, much of A.M.’s testimony was favorable to Calandra, we see
no basis on which to conclude that retaining a mental health expert to
challenge her credibility would have benefited Calandra’s defense in any
event. See State v. Denz, 232 Ariz. 441, 445, ¶ 11 (App. 2013) (“[C]ounsel may
opt not to pursue a particular investigative path” that is “unnecessary in
light of counsel’s chosen trial strategy.”). We reject Calandra’s wholly
speculative claim that he was somehow prejudiced by trial counsel’s failure
to consult with a mental health expert while preparing for trial. See State v.
Rosario, 195 Ariz. 264, 268, ¶ 23 (App. 1999) (noting the showing of prejudice
needed to obtain relief on an IAC claim “must be that of a provable reality,
not mere speculation”).

6
 STATE v. CALANDRA
Decision of the Court

C. Failure to Request Instructions on Lesser-Included
Offenses

¶18 Calandra next argues that his counsel was ineffective by
failing to request jury instructions on lesser-included offenses of
aggravated assault. As charged in this case, a person commits aggravated
assault if the person intentionally places another person in reasonable
apprehension of imminent physical injury using a deadly weapon or
dangerous instrument. A.R.S. § 13-1204(A)(2). Calandra argues that counsel
should have requested instructions on attempted aggravated assault and
simple assault as lesser-included offenses of the charged offense.1

¶19 Calandra’s defense at trial was that he did nothing wrong. In
her testimony, A.M. supported Calandra’s defense, denying that Calandra
placed her in apprehension of any injury at all, much less in reasonable
apprehension of imminent physical injury from a dangerous instrument. In
closing argument, Calandra’s counsel asserted that the jury should believe
A.M.’s testimony. This was a reasonable strategy given A.M.’s testimony,
which, if the jurors believed, would have resulted in a “not guilty” verdict.
Accordingly, counsel’s decision not to request instructions on lesser-
included offenses was a matter of trial strategy that does not support an
IAC claim. See State v. Noleen, 142 Ariz. 101, 108 (1984) (holding that
counsel’s failure to request a self-defense instruction in murder case did not
constitute IAC because defense was based on “the theory of accidental
homicide . . . rather than self-defense”); see also State v. Bigger, 251 Ariz. 402,
408, ¶ 12 (2021) (“[M]atters of trial strategy and tactics are committed to
defense counsel’s judgment and generally cannot serve as the basis for an
IAC claim.”) (cleaned up); State v. Valdez, 160 Ariz. 9, 14 (1989) (“Defense
counsel’s determinations of trial strategy, even if later proven unsuccessful,
are not ineffective assistance of counsel.”).

D. Failure to Request an Instruction on Voluntary Intoxication

¶20 As his final IAC claim, Calandra argues that his counsel was
ineffective by failing to request a jury instruction on voluntary intoxication.
Because “intent is a necessary element of the offense,” Calandra contends,
a voluntary intoxication instruction would have allowed the jury to find a
“necessary element for conviction to be missing.”

1 As noted above, Calandra was convicted of the lesser-included offense of

disorderly conduct, but that count was later dismissed.

7
 STATE v. CALANDRA
Decision of the Court

¶21 Under A.R.S. § 13-503, “[t]emporary intoxication” from
voluntarily consuming alcohol “is not a defense for any criminal act or
requisite state of mind.” Because voluntary intoxication was not a defense
to the charged crimes, counsel could not have been prejudicially deficient
in failing to ask that the jury be instructed on it. Cf. Andersen, 177 Ariz. at
386 (rejecting claim that trial counsel was deficient by not requesting self-
defense instruction where defendant testified that he shot victim by
accident and did not present “the slightest evidence supporting a
self-defense instruction”). We deny relief on this claim as well.

CONCLUSION

¶22 For the above reasons, we grant review and deny relief.

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

8