State v. Cramer

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAEL CRAMER, Petitioner.

No. 1 CA-CR 24-0484 PRPC
FILED 04-17-2025

Petition for Review from the Superior Court in Maricopa County
No. CR2020-001790-001
The Honorable Aryeh D. Schwartz, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

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

Grand Canyon Law Group LLC, Mesa
By Kevin R. Myer
Counsel for Petitioner
 STATE v. CRAMER
Decision of the Court

MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Michael S. Catlett and Judge David D. Weinzweig joined.

K I L E Y, Judge:

¶1 Petitioner Michael Cramer seeks review of the superior
court’s order dismissing his petition for post-conviction relief (“PCR”). This
is Cramer’s first PCR petition. We grant review but deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 H.C. lived with her grandparents for most of her life. In
February 2019, then 12-year-old H.C. disclosed to a school employee that
Cramer, her grandfather, touched her inappropriately. The school
employee called the police. Forensic interviews with H.C. revealed that
Cramer had been sexually abusing her since she was six years old.

¶3 H.C. was removed from her grandparents’ home and began
living with another family member.

¶4 The State charged Cramer with five counts of sexual conduct
with a minor, each a Class 2 felony and a dangerous crime against children
(DCAC), and one count of furnishing obscene or harmful items to a minor,
a Class 4 felony.

¶5 At trial, the State called a number of witnesses, including
H.C., her grandmother, the investigating detective, the nurse who
performed the sexual assault examination, and forensic interviewers
Wendy Dutton and Amy Heil. Heil testified as a “blind expert” about the
reasons that child victims may not immediately report sexual abuse. Heil
stated that child victims may delay disclosing sexual abuse by a family
member because, among other reasons, they “fear” their abusers, they feel
“guilt and shame,” or they worry that disclosure would “break up the
family.” On cross-examination, Heil acknowledged that children
sometimes make allegations of abuse that are untrue, adding that the
“scenarios” in which “malicious, false allegations tend to occur” include
when “teenage girls” are “trying to change their living situation.”

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¶6 Cramer testified on his own behalf. Asserting that H.C.
rebelled against the strict rules that he and his wife imposed in their
household, Cramer suggested that H.C. fabricated her allegations to secure
her removal from their home. Cramer added that:

[w]e read a journal that she had left in a bedroom—her
bedroom upstairs. We were cleaning it up in there, and we
got this journal that she wanted to live somewhere else. And
we just found that journal just [sic] recently.

Defense counsel had neither disclosed the journal to the State nor sought to
offer it as an exhibit at trial.

¶7 In closing argument, defense counsel argued that H.C.
fabricated her accusations because she “desperately want[ed]” to leave her
grandparents’ home. Citing Heil’s testimony that “the areas in which false
accusations tend to exist” usually “involv[e] teenage girls who are trying to
change their living situations,” he argued that H.C. “fits the profile of
someone that does make false accusations.”

¶8 The jury found Cramer guilty on all five counts of sexual
conduct with a minor and not guilty of furnishing obscene or harmful items
to a minor.

¶9 During the sentencing hearing, both parties referred to the
journal that Cramer claimed to have discovered in H.C.’s former bedroom.
Referring to Cramer’s claim about the journal that “he magically found . . .
just a week before he testified,” the prosecutor stated, “I submit to you,
there was no journal.” The prosecutor contended that Cramer lied about
finding a journal after he heard Heil testify that “teenage girls” sometimes
make “false [sexual abuse] allegations” when they desire to “change their
living situation.” In response, defense counsel avowed to the court that
“there was a journal” that “was given to [him] . . . a few days prior to
testimony.” Counsel added, “[W]e made a calculated decision that we’re
not going to use it.”

¶10 The court sentenced Cramer to life in prison with the
possibility of release after 35 years on one count of sexual conduct with a
minor and consecutive 15-year terms on the remaining counts. In April
2023, this Court affirmed the convictions and sentences on direct appeal.
State v. Cramer, 1 CA-CR 22-0063, 2023 WL 3067745 at *2, ¶ 9 (Ariz. App.
Apr. 25, 2023) (mem. decision).

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¶11 Cramer then filed his PCR petition alleging ineffective
assistance of counsel (“IAC”) based on trial counsel’s failure to offer H.C.’s
journal as evidence at trial. Quoting certain journal entries that he
contended showed “H.C.’s desire to change her living situation,” Cramer
argued that trial counsel should have used the journal to explain to the jury
“why H.C. would fabricate the allegations in this case.”

¶12 Noting that an IAC claim cannot be premised on matter of
trial strategy merely because it proves unsuccessful, the State argued in
response that Cramer’s trial counsel “had sound tactical reasons for not
seeking to offer this journal into evidence.” The State supported its response
with an affidavit from Cramer’s trial counsel setting forth the
considerations that informed his decision not to seek to offer the journal as
an exhibit. Among other things, trial counsel stated the journal contained
“considerable material” that the State could have used “to bolster its case,”
including an entry dated March 1, 2019, which, counsel believed, the jury
could have interpreted as a reference by H.C. to sexual abuse at Cramer’s
hands.

¶13 In any event, trial counsel stated, the journal entries in which
H.C. recorded her dissatisfaction with her life bear dates after H.C. had
already been removed from Cramer’s home. “Because [H.C.] was no longer
living with [Cramer] when she wrote the entries” expressing unhappiness,
trial counsel stated, “I could not have plausibly offered the journal to prove
that [H.C.] had falsely accused [Cramer] of sexual misconduct with the
objective of living with someone other than him.”1

¶14 Finally, trial counsel noted that using H.C.’s journal entries to
prove that she “suffered mental health issues” could have backfired by
allowing the State to offer the “devastating rejoinder” that H.C. struggled
with mental health because she had been “sexually abused” throughout her
life by “her own grandfather.”

¶15 In his reply, Cramer identified a different basis for his IAC
claim. While his PCR petition asserted that trial counsel should have offered
H.C.’s journal to establish her motive to fabricate allegations against him,

1 The fact that entries in the journal bear dates after H.C. had moved out of

Cramer’s home raises questions about how Cramer came into possession of
the journal in the first place. Although the record discloses no definitive
answer, comments by Cramer’s counsel suggest that another family
member may have obtained the journal from H.C.’s new home and given it
to Cramer.

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Cramer contended in his reply that trial counsel should have offered H.C.’s
journal to prove that she suffered from “mental health issues” so
“significant” that her allegations could not be credited. Cramer supported
his reply with a letter from attorney and certified criminal law specialist
Michael Alarid III, who stated that false allegations are often found in cases
“involving adolescent or teenage females with significant mental health
issues.” According to Alarid, trial counsel “should have elicited” testimony
from Heil that false allegations may be made by teenage girls whose
perception of “reality” is “impair[ed]” by “serious mental illness,” and then
“used the journal entries to show” that H.C. “had mental health issues . . .
commonly associated with” this type of false allegation.

¶16 In its order summarily dismissing Cramer’s PCR petition, the
court ruled the defense counsel’s choice “not to use or attempt to use the
journal was a tactical decision,” and counsel “had objectively reasonable
bases” to support that choice. “The probative value of the journal . . . was
speculative,” the court found, “[b]ecause the dates of the journal entries at
issue indicate that the entries were made after the victim had already
permanently left [Cramer’s] residence.” Further, the court found no
prejudice from counsel’s failure to offer the journal as evidence of H.C.’s
mental health issues because “[e]vidence of the victim’s mental health had
already been presented” from other witnesses.

¶17 Cramer timely filed this petition for review. This Court has
jurisdiction pursuant to A.R.S. § 13-4239, and Arizona Rule of Criminal
Procedure 33.16.

DISCUSSION

¶18 Cramer contends in his petition for review that the trial court
abused its discretion in summarily dismissing his IAC claim without
holding an evidentiary hearing.

¶19 To prevail on an IAC claim, a defendant must demonstrate
that (1) counsel’s conduct fell below an objective standard of reasonableness
and (2) he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668,
687–88 (1984). In evaluating an IAC claim, the court must begin with the
“strong presumption that counsel’s conduct [fell] within the wide range of
reasonable professional assistance.” See State v. Pandeli, 242 Ariz. 175, 181,
¶ 7 (2017) (quotation omitted).

¶20 The trial court must hold an evidentiary hearing on a PCR
petition if the petition presents a colorable claim for relief, meaning that the
petition’s allegations, if true, would probably have resulted in a more

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favorable outcome for the defendant. See State v. Amaral, 239 Ariz. 217, 220,
¶ 11 (2016) (“The relevant inquiry for determining whether the [defendant]
is entitled to an evidentiary hearing is whether he has alleged facts which,
if true, would probably have changed the verdict or sentence.”); Strickland,
466 U.S. at 694 (finding that a challenger must demonstrate “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different”). If, on the other hand, the court
determines that the petition identifies no material issue of fact or law which,
if true, would entitle the defendant to post-conviction relief, the court may
summarily dismiss the petition. A.R.S. § 13-4236(C); see also Amaral, 239
Ariz. at 220, ¶ 12 (“If the alleged facts, assumed to be true, would not
provide grounds for relief, the court need not conduct an evidentiary
hearing because those facts would not have changed the outcome.”
(citations omitted)). This Court “will not disturb the superior court’s ruling
on a PCR petition absent an abuse of discretion or error of law.” State v.
Evans, 252 Ariz. 590, 594, ¶ 7 (App. 2022) (citations omitted). The burden to
show such an abuse of discretion rests with the party challenging the ruling.
See State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011).

¶21 Cramer contends that the court abused its discretion in
summarily dismissing his PCR petition because Alarid’s letter establishes
that “girls with mental health issues are more likely to fabricate an
accusation, and the journal was strong evidence of [H.C.’s] poor mental
health.” At a minimum, he contends, “[t]here was at least doubt concerning
the color of the claim in light of Alarid’s opinion,” which, in turn, required
the court to hold an evidentiary hearing.

¶22 In response, the State argues, first, that Cramer waived the
arguments supported by Alarid’s letter because they were raised for the
first time in Cramer’s reply to the State’s response to the PCR petition.

¶23 In his PCR petition, Cramer argued that trial counsel’s failure
to offer the journal constituted IAC because the journal established H.C.’s
motive to fabricate allegations against him. As the State correctly argues,
Cramer did not submit Alarid’s letter nor argue that the journal evidenced
mental health issues commonly associated with false allegations by teenage
girls until his reply to the State’s response to his PCR petition. By waiting
until he filed his reply to argue that the journal showed that H.C. suffered
from mental health issues that impaired her perception of reality, thus
rendering her allegations incredible, Cramer has waived his argument. See
State v. Lopez, 223 Ariz. 238, 239-40, ¶¶ 3-7 (App. 2009) (applying waiver
doctrine and finding no abuse of discretion in superior court’s refusal to
address arguments raised for first time in reply to PCR petition)).

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¶24 In any event, as the State correctly asserts, Cramer’s argument
amounts to a disagreement over trial tactics. And because “[e]ven the best
criminal defense attorneys would not defend a particular client in the same
way,” Strickland, 466 U.S. at 689 (citation omitted), a disagreement over
“strategy decisions cannot support a determination that representation was
inadequate.” Pandeli, 242 Ariz. at 181, ¶ 8 (citation omitted); see also State v.
Ring, 131 Ariz. 374, 377 (1982) (“Ineffective assistance of counsel claims may
not be predicated upon disagreements as to trial strategy.” (citations
omitted)). “[A]s long as the challenged conduct could have some reasoned
basis,” a convicted defendant’s “[d]isagreements” about his counsel’s “trial
strategy” is insufficient to establish an IAC claim. State v. Meeker, 143 Ariz.
256, 260 (1984) (citations omitted); see also State v. Bigger, 251 Ariz. 402, 409,
¶ 15 (2021) (“A defendant must do more than disagree with, or posit
alternatives to, counsel’s decisions to overcome the presumption of proper
action.” (cleaned up)).

¶25 Cramer’s trial counsel asserted, as a defense at trial, that H.C.
deliberately made false allegations against Cramer because she wanted to
be removed from his home. The journal could not have bolstered this
defense because, as trial counsel pointed out in his affidavit, the relevant
journal entries are dated after H.C. had already left Cramer’s home. Because
the journal did not support Cramer’s defense, counsel was not ineffective
in failing to offer the journal at trial. See Ring, 131 Ariz. at 377 (“Failure to
argue frivolous or groundless matters does not make counsel ineffective.”
(citation omitted)).

¶26 Although Alarid opines that trial counsel should have
asserted a different defense, i.e., that H.C.’s allegations were the product of
delusions stemming from underlying mental illness, Cramer’s trial counsel
decided that such a defense could have backfired. As trial counsel indicated
in his affidavit, evidence that H.C. suffered from mental illness did nothing
to refute the State’s allegation that Cramer had sexually abused her for
years. On the contrary, a reasonable jury might conclude that H.C.
struggled with mental illness precisely because she had been subjected to
horrific abuse throughout her life at the hands of a close family member.

¶27 Finally, trial counsel expressed concern that had the journal
been admitted as an exhibit, the jurors may have interpreted the entry dated
March 1, 2019, as a reference to sexual abuse by Cramer. In his petition for
review, Cramer does not dispute or otherwise respond to trial counsel’s
assertions about the potentially damaging effect of the March 1, 2019,
journal entry.

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¶28 Because trial counsel made a reasoned decision not to offer
the journal as an exhibit because its contents would not strengthen the
defense position and might well bolster the State’s case, counsel’s decision
not to use the journal is the type of tactical decision that cannot, as a matter
of law, support an IAC claim. See State v. Gerlaugh, 144 Ariz. 449, 455 (1985)
(“Disagreements in trial strategy will not support a claim of ineffective
assistance so long as the challenged conduct has some reasoned basis.”
(citations omitted)); see also Pandeli, 242 Ariz. at 182-83, ¶¶ 13-16 (holding
that defense counsel was not ineffective by forgoing cross-examination of
the State’s expert for fear that “a cross-examination would give the expert
a chance to inflict greater damage,” since defense counsel “clearly had, at a
minimum, some reasoned basis” for that decision (cleaned up)).

¶29 In dismissing Cramer’s PCR petition, the court found that
Cramer failed to establish prejudice from the failure to offer the journal as
proof of H.C.’s mental illness. Noting that other witnesses had testified that
H.C. suffered from depression and engaged in self-harming behavior, the
court held “[w]hether the jury would have reached different verdicts” if the
journal had been admitted in evidence “is, at best, speculative” since “the
jury had already been presented with evidence of the victim’s mental
health” through the testimony of other witnesses. 2 Although Cramer
asserts, in a conclusory manner, “that there was a reasonable probability”
that the admission of the journal “would have changed the outcome of the
trial,” he does not identify any information the journal contained about
H.C.’s mental health issues that was not already shown through witness
testimony. Accordingly, we find Cramer’s “prejudice” argument
insufficiently developed and thus waived. See State v. Moody, 208 Ariz. 424,
452, ¶ 101 n. 9 (2004) (“Failure to argue a claim usually constitutes
abandonment and waiver of that claim.” (quotation omitted)); cf. State v.
Thompson, 252 Ariz. 279, 295-96, ¶¶ 57-58 (2022) (rejecting defendant’s
challenge to trial court’s decision to strike certain prospective jurors
because defendant did not “articulate[] how any of the strikes prejudiced
him”). And because an IAC claim cannot succeed absent a showing of

2 At trial, H.C.’s mother testified that, at the time she disclosed Cramer’s

abuse, H.C. had been diagnosed with depression and was “cutting” herself.
Forensic interviewer Wendy Dutton testified that she observed “marks on
[H.C.’s] arms” when she interviewed her, and that H.C. admitted that “she
had been cutting.” Similarly, the nurse who conducted the sexual assault
examination testified that H.C. said she had been having “suicidal thoughts
for about [a] year.”

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prejudice, see Strickland, 466 U.S. at 687–88, Cramer’s waiver of his prejudice
argument is fatal to his IAC claim.

CONCLUSION

¶30 Because the superior court did not abuse its discretion by
summarily dismissing Cramer’s PCR petition, we grant review and deny
relief.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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