State v. Preston

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SAMUEL CLAYTON PRESTON, Petitioner.

No. 1 CA-CR 24-0486 PRPC

FILED 04-22-2025

Petition for Review from the Superior Court in Maricopa County
No. CR2018-001000-001
The Honorable Timothy J. Ryan, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Douglas Gerlach
Counsel for Respondent

Law Office of Randal B. McDonald, Phoenix
By Randal McDonald
Counsel for Petitioner
 STATE v. PRESTON
Decision of the Court

MEMORANDUM DECISION

Chief Judge David B. Gass delivered the decision of the court, in which
Presiding Judge Brian Y. Furuya and Vice Chief Judge Randall M. Howe
joined.

G A S S, Chief Judge:

¶1 Samuel C. Preston petitions the court for review from the
superior court’s dismissal of his petition for post-conviction relief, filed
under Rule 32.1, Arizona Rules of Criminal Procedure. The court grants
review but denies relief.

FACTUAL AND PROCEDURAL HISTORY

¶2 On March 16, 2016, K.F., a 12-year-old girl, attended a
sleepover with her friends at Preston’s house.

¶3 K.F. testified she was sleeping on the couch in the living room
when she woke up at 2:00 a.m. to Preston touching her leg. Preston then
climbed on top of her and forced her hand to rub his penis inside his pants.
He forced his hand into her underwear, rubbing and penetrating her vagina
with his finger. He then rubbed her left breast under her shirt. At that point,
Preston’s wife walked in, and K.F. told her what Preston had done to her.

¶4 Following a 12-day trial, the jury convicted Preston of 1 count
of sexual abuse. On 1 count of sexual conduct, the jury could not agree but
convicted him of the lesser-included crime of child molestation. The jury
acquitted Preston on the 3 remaining counts: 2 for sexual conduct with a
minor and 1 for kidnapping. The superior court sentenced Preston to the
presumptive 17-year prison term for the child molestation count and
suspended his sentence and imposed lifetime probation for the sexual
abuse count. On direct appeal, the court affirmed his convictions and
sentences in State v. Preston, 1 CA-CR 21-0138, 2022 WL 1222444 (Ariz. App.
Apr. 26, 2022) (mem. decision).

¶5 Preston timely petitioned for post-conviction relief, claiming
ineffective assistance of counsel and actual innocence. The superior court
summarily dismissed Preston’s petition.

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¶6 The court has jurisdiction over Preston’s timely petition for
review under Article VI, Section 9, of the Arizona Constitution, A.R.S. § 13
-4239, and Rule 32.16.

DISCUSSION

¶7 Preston argues he presented colorable claims of ineffective
assistance of counsel and actual innocence. He also argues the superior
court abused its discretion by considering matters outside the record
during oral argument on the petition. He asks the court to vacate the
summary dismissal order and remand to the superior court for an
evidentiary hearing on his claims.

¶8 The court reviews the superior court’s summary dismissal of
a petition for post-conviction relief for abuse of discretion. State v. Amaral, 239 Ariz. 217, 219 ¶ 9 (2016). An evidentiary hearing is warranted if a
defendant presents a colorable claim of ineffective assistance of counsel.
State v. Herrera, 183 Ariz. 642, 647 (App. 1995). To state a colorable claim, “a
defendant must show both that counsel’s performance fell below
objectively reasonable standards and that this deficiency prejudiced the
defendant.” State v. Bennett, 213 Ariz. 562, 567 ¶ 21 (2006). Courts “must
indulge a strong presumption that counsel’s conduct” was reasonable
under the circumstances and resulted from sound trial strategy. Strickland
v. Washington, 466 U.S. 668, 689 (1984); see also State v. Bigger, 251 Ariz. 402,
407–08 ¶ 10 (2021). To show prejudice, the defendant must offer “some
evidence of a reasonable probability that, but for counsel’s unprofessional
errors, the outcome of the [proceeding] would have been different.” State v.
Rosario, 195 Ariz. 264, 268 ¶ 23 (App. 1999). The court need not address both
prongs if the defendant’s showing is insufficient on one. State v. Pandeli, 242
Ariz. 175, 181 ¶ 6 (2017).

I. The superior court did not abuse its discretion by summarily
dismissing Preston’s claims for ineffective assistance of trial
counsel.

¶9 Preston had 2 trial lawyers and raised ineffective assistance of
counsel as to both. Preston retained the second lawyer about 7 months after
he was indicted. The second lawyer represented Preston through trial and
sentencing. Collectively, Preston raises 7 specific issues to show his trial
lawyers’ ineffective assistance. As an eighth matter, Preston argues the
cumulative effects of those errors establish ineffective assistance of counsel
even if they do not individually rise to that level. We address each issue in
turn.

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¶10 For his first issue, Preston argues his trial counsel
inadequately communicated with him and his family. This argument fails.
As Preston acknowledges, he has not “delineated the specifics of what
[counsel] would have communicated or vice versa.” And Preston does not
identify how any communications would have changed the outcome. He
thus shows no prejudice. See Rosario, 195 Ariz. at 268 ¶ 23. (“The burden is
on the petitioner and the showing must be that of a provable reality, not
mere speculation.”).

¶11 For his second issue, Preston argues his trial counsel should
have challenged the grand jury’s indictment. This argument also fails for
lack of prejudice. Preston argues the State violated his due process rights
during the grand jury proceeding by failing “to present exculpatory
evidence admitting that they did not collect DNA swabs from [Preston’s]
body or clothing.” True, if “exculpatory information [is] provided by the
police, the law requires that it be presented to the grand jury.” Trebus v.
Davis, 189 Ariz. 621, 624 (1997). But the uncollected DNA evidence was not
exculpatory. See Preston, 1 CA-CR 21-0138, at *2 ¶ 14; State v. Hernandez, 250
Ariz. 28, 33–34 ¶¶ 19–21 (2020) (holding the mere absence of DNA tends
not to exonerate the defendant because the defendant “may not have left
identifiable DNA” even if they committed the crime). Even if Preston
assaulted K.F., her DNA may not have been found on Preston’s clothing or
body. Preston thus has not shown challenging the grand jury indictment
had a “reasonable likelihood” of success and thus he failed to show he was
prejudiced by his counsel not doing so. See State v. Berryman, 178 Ariz. 617,
622 (App. 1994) (requiring defendant to show a “reasonable likelihood that
a motion [] would have succeeded” to show prejudice from ineffective
assistance of counsel).

¶12 For his third issue, Preston argues his trial counsel should
have moved for dismissal because the State took nearly 2 years to indict
him. He argues the delay resulted in the State not preserving K.F.’s text
messages with her friend from the night of the incident. “For
pre-indictment delay to violate due process, a defendant must show that (1)
the delay was intended to gain a tactical advantage or to harass him, and
(2) the delay actually and substantially prejudiced him.” State v. Dunlap, 187
Ariz. 441, 450 (1996). “[A] defendant has a heavy burden to prove that
pre-indictment delay caused actual prejudice; the proof must be definite
and not speculative.” Id. When lost evidence “might have been exculpatory,
but [its] exculpatory value is not apparent . . . [the] defendant cannot show
prejudice in fact.” Id. at 452–53. As with his first 2 issues, Preston cannot
establish prejudice. The contents of the messages are unknown, and
nothing in the record suggests they would be exculpatory. And so, Preston

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cannot show the prejudice required to succeed on a motion to dismiss based
on pre-indictment delay. See Berryman, 178 Ariz. at 622.

¶13 For his fourth issue, Preston argues his second trial counsel
fell asleep during the State’s pretrial interview of Preston’s wife. The
superior court rejected this argument because Preston failed to show “what
adverse outcome came from” the second lawyer allegedly falling asleep.
Preston now asserts, “[t]he adverse outcome has been illustrated
throughout this case—[Preston’s] conviction for a crime he did not
commit.” Though the allegation of an attorney falling asleep during a
witness’s interview is deeply concerning, Preston’s conclusory assertions
are not enough to show prejudice. See State v. Donald, 198 Ariz. 406, 414
¶ 21 (App. 2000) (“To mandate an evidentiary hearing, the defendant’s
challenge must consist of more than conclusory assertions and be
supported by more than regret.”).

¶14 For his fifth issue, Preston argues because his second trial
counsel received a State Bar Disciplinary Judgment against him while
representing Preston, “[i]t is likely that [his] professional challenges
overshadowed his ability to competently represent [Preston].” (cleaned up).
Again, establishing prejudice requires more than mere speculation. See
Rosario, 195 Ariz. at 268 ¶ 23. And Preston has merely speculated on how
the disciplinary judgment in an unrelated matter affected his second trial
counsel’s handling of his case.

¶15 For his sixth issue, Preston argues his second trial counsel did
not object to the superior court precluding 2 of the victim’s friends from
testifying. But on direct appeal, this court determined the superior court did
not abuse its discretion when it precluded the witnesses’ testimony. Preston,
1 CA-CR 21-0138, at *3 ¶¶ 19–24. This argument thus is precluded. See Ariz.
R. Crim. P. 32.2(a)(3).

¶16 For his seventh issue, Preston argues his second trial counsel
should have objected when the superior court referred to Preston’s “lack of
remorse” during sentencing. But, again, this court already addressed this
issue on direct appeal and concluded “any error in sentencing was
harmless.” Preston, 1 CA-CR 21-0138, at *6–*7 ¶¶ 40–43. This argument thus
is also precluded. See Ariz. R. Crim. P. 32.2(a)(3).

¶17 As a final matter regarding ineffective assistance of counsel,
Preston argues the cumulative effects of both trial counsel’s errors
constitute ineffective assistance of counsel. But the Arizona Supreme Court
does not apply the cumulative error doctrine to ineffective assistance of

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counsel claims. See Pandeli, 242 Ariz. at 191–92 ¶ 69. And Preston has not
shown cumulative error because he has established no prejudice resulting
from his counsels’ alleged errors.

II. The superior court did not abuse its discretion by dismissing
Preston’s actual innocence claim.

¶18 Rule 32.1(h) requires the defendant to show “by clear and
convincing evidence that the facts underlying the claim would be sufficient
to establish that no reasonable fact-finder would find the defendant guilty
of the offense beyond a reasonable doubt.”

¶19 Preston argues cumulatively, certain missing pieces of
evidence to establish his actual innocence. He points to the excluded
testimony from K.F.’s friends, the uncollected DNA evidence from
Preston’s body and clothes, and K.F.’s unpreserved text messages. He
argues the jury could not reasonably have convicted him if it had heard that
evidence. But Preston has not provided affidavits from the witnesses
explaining what they would have said. And he has not shown what the
uncollected and unpreserved evidence would have revealed. Because
Preston “did not present new evidence of innocence,” the superior court
acted within its discretion when it dismissed this claim. See State v. Evans, 252 Ariz. 590, 598 ¶ 28 (App. 2022).

III. The superior court did not consider matters outside the record.

¶20 As a final matter, Preston argues the superior court “abused
its discretion by relying on facts not in evidence to make its decision.”
Preston points to 2 statements the superior court made during oral
argument on the petition.

¶21 First, the superior court speculated the reason for the 2-year
delay in bringing the indictment was because the then sheriff “understaffed
west side sex crimes investigations and basically put a lot of cases on the
back shelf.” (cleaned up). But defense counsel immediately pointed out
“that [] is not evidence. We don’t know that to be the case.” And the
superior court agreed. The record thus does not suggest the superior court
considered its assumption as to the cause of the 2-year delay in dismissing
Preston’s claims. Second, the superior court said it was “incredulous at”
parts of the defense expert’s DNA testimony. Incredulous perhaps, but that
testimony no doubt was in evidence, and the superior court appropriately
acknowledged it.

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CONCLUSION

¶22 The court grants review of the superior court’s dismissal of
Preston’s petition but denies relief.

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

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