State v. Kashkool

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RASOOL ADNAN KASHKOOL, Petitioner.

No. 1 CA-CR 23-0576 PRPC
FILED 09-24-2024

Appeal from the Superior Court in Maricopa County
No. CR2013-003662-001
The Honorable David W. Garbarino, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Robert A. Walsh
Counsel for Respondent

Rasool Adnan Kashkool, Phoenix
Petitioner
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Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the Court, in
which Presiding Judge Michael S. Catlett and Judge Jennifer M. Perkins
joined.

H O W E, Judge:

¶1 Rasool Adnan Kashkool petitions this court for review from
the dismissal of his petition for post-conviction relief. We have considered
his petition for review and for the reasons stated below, we grant review
and deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2018, a jury found Kashkool guilty of fraudulent schemes
and artifices, a class two felony. The superior court sentenced Kashkool to
six years in prison. On appeal, Kashkool challenged the sufficiency of the
evidence, denial of the motion for directed verdict, double jeopardy,
admissibility of bank dispute forms and other electronic banking records,
and whether he had the mental capacity to commit the crime. State v.
Kashkool, 1 CA-CR 18-0456, 2020 WL 1313318, at *1 ¶ 1 (App. Mar. 19, 2020).
Finding no fundamental error, this court affirmed Kashkool’s conviction
and sentence. Id. at *6–7 ¶¶ 34–35.

¶3 Kashkool timely filed a notice of request for post-conviction
relief, claiming ineffective assistance of counsel. See Ariz. R. Crim. P. 32.1(a).
Finding no claims colorable, the superior court summarily dismissed the
proceeding. Kashkool again raises ineffective assistance of counsel on
review.

DISCUSSION

¶4 To prevail on a claim of ineffective assistance of counsel,
Kashkool must demonstrate that his counsel’s performance was deficient
and that he was prejudiced. Strickland v. Washington, 466 U.S. 668, 687
(1984). A strong presumption applies that “counsel’s conduct falls within
the wide range of reasonable professional assistance[.]” Id. at 689.
“Disagreements in trial strategy will not support a claim of ineffective

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Decision of the Court

assistance so long as the challenged conduct has some reasoned basis.” State
v. Gerlaugh, 144 Ariz. 449, 455 (1985). We review a trial court’s denial of a
post-conviction relief proceeding for an abuse of discretion. State v. Pandeli, 242 Ariz. 175, 180 ¶ 4 (2017).

¶5 First, Kashkool argues defense counsel erred by not raising a
diminished capacity defense or admitting a letter Kashkool wrote to the
bank explaining his mental health problems. Six years after the crime
occurred, the trial court found Kashkool incompetent, but he was restored
to competency two months later. In Arizona, evidence of a mental disease
or defect cannot negate the mens rea element of a crime. State v. Malone, 247
Ariz. 29, 31 ¶¶ 8–9 (2019). Thus, Kashkool cannot show error and suffered
no prejudice because neither a diminished capacity defense nor the letter
could have negated the mens rea of the offense.

¶6 Next, Kashkool contends defense counsel was ineffective
during cross-examination of a bank employee who received Kashkool’s
dispute forms claiming fraudulent activity. Kashkool maintains that he
signed a blank dispute form, and the employee filled it in later, but that his
counsel failed to question the employee about this. This claim fails because
“[t]he manner in which cross-examination is conducted is a tactical decision
to be made by the lawyer.” State v. Stone, 151 Ariz. 455, 461 (App. 1986).
Additionally, on appeal, we rejected Kashkool’s argument that the bank
employee altered the bank forms. Kashkool, 1 CA-CR 18-0456, at *6 ¶ 30.
Kashkool has not shown that his counsel’s strategy not to pursue this line
of questioning was unreasonable.

¶7 Finally, Kashkool argues that his counsel was ineffective for
not subpoenaing additional bank employees who received dispute forms
from Kashkool. Kashkool argues the additional witnesses and their notary
books would have supported his claim that he did not fill out the dispute
forms. Again, the argument fails. “The decision as to what witnesses should
be called to testify on defendant’s behalf is a strategic decision that will not
normally support a claim of ineffective assistance of counsel.” Gerlaugh, 144
Ariz. at 462. Further, Kashkool’s petition lacks supporting affidavits
containing the witnesses’ testimony. See State v. Borbon, 146 Ariz. 392, 399
(1985) (“Rule 32 does not require the trial court to conduct evidentiary
hearings based on mere generalizations and unsubstantiated claims that
people exist who would give favorable testimony.”). Kashkool’s claim that
the other bank employee’s notary books would show that Kashkool did not
fill out the dispute forms is speculative and unsubstantiated.

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¶8 Finally, Kashkool argues that appellate counsel was
ineffective for failing to raise trial counsel’s ineffectiveness on appeal. It is
well settled that ineffective assistance of counsel claims may only be
brought in a post-conviction relief proceeding. State v. Spreitz, 202 Ariz. 1, 3
¶ 9 (2002). Thus, we need not address the argument further.

CONCLUSION

¶9 Because the superior court did not abuse its discretion in
dismissing Kashkool’s petition, we grant review but deny relief.

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

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