State v. Hardy

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GREGORY JUSTIN HARDY, JR., Petitioner.

No. 1 CA-CR 25-0252 PRPC
FILED 01-26-2026

Petition for Review from the Superior Court in Yavapai County
No. P1300CR202001039
The Honorable Debra R. Phelan, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Yavapai County Attorney’s Office, Prescott
By Dennis M. McGrane
Counsel for Respondent

Gregory Justin Hardy, Jr.
Petitioner

MEMORANDUM DECISION

Presiding Judge Andrew M. Jacobs delivered the decision of the Court, in
which Judge Brian Y. Furuya and Judge James B. Morse Jr. joined.
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Decision of the Court

J A C O B S, Judge:

¶1 Gregory Justin Hardy, Jr. (“Hardy”) petitions this court for
review from the denial of his petition for post-conviction relief filed under
Arizona Rule of Criminal Procedure (“Rule”) 32. For the reasons stated
below, we grant review of his petition but deny the relief he requests.

FACTUAL AND PROCEDURAL HISTORY

¶2 In 2019, Hardy was in jail awaiting trial on charges including
aggravated assault and burglary. The jail intercepted two letters addressed
to Hardy’s dad but written by other inmates in Hardy’s cell block. The
letters directed Hardy’s father to visit an address associated with the
victims of Hardy’s crime and offer the victims various incentives, including
$500 or Hardy’s truck, to drop the charges against him. Detectives also
obtained recordings of phone calls Hardy made to his dad using other
inmates’ phone accounts in which he asked for his dad’s address and
whether his dad received the letters.

¶3 While the two letters addressed to Hardy’s father were
intercepted before they were delivered, a third letter was delivered directly
to the victims and turned over to detectives. This third letter was again
written by an inmate who was in contact with Hardy. The letter urged the
victims to “do what you can to set this man free” because Hardy was “an
innocent man[.]” The inmate who sent the letter to the victims later turned
over notes or “kites” Hardy sent him with detailed instructions for writing
the letter.

¶4 After the detectives completed their investigation, Hardy was
indicted on four counts: (1) fraudulent schemes and artifices; (2) obstructing
criminal investigations or prosecutions; (3) conspiracy to commit
obstructing criminal investigations or prosecutions; and (4) conspiracy to
commit tampering with a witness. After a four-day jury trial, Hardy was
found guilty as to all four counts and sentenced to 15.75 years in the
Department of Corrections on Count 1, with the lesser sentences on Counts
2-4 running concurrently. Hardy’s convictions and sentences were
affirmed on appeal.

¶5 Hardy filed a petition for post-conviction relief (“PCR”). The
superior court appointed PCR counsel. After reviewing the record, PCR
counsel filed a petition of no colorable claim pursuant to Rule 32.6(c).
Hardy filed a supplemental pro per petition for PCR, alleging ineffective
assistance of counsel (“IAC”) during pre-trial, trial, sentencing, direct

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 STATE v. HARDY
Decision of the Court

appeal, and Rule 32 proceedings. Although framed as an allegation of IAC,
Hardy’s main complaint was that he did not receive a transcript of jury
selection, which inhibited either him or his counsel from raising issues that
might have arisen during that process.

¶6 The superior court took Hardy’s supplemental pro per
petition for PCR as a request under Rule 32.8(b) to have the transcript of
voir dire prepared and provided to the parties, which it granted. The
superior court then allowed the parties additional time after receiving the
voir dire transcript to file supplemental briefing.

¶7 Hardy’s supplemental briefing again alleged IAC, this time
arguing: (1) pre-trial and trial counsel were ineffective in failing to
interview or call certain witnesses he alleges could have impeached the
State’s “star” witness; (2) trial counsel was ineffective in failing to call a
handwriting expert; (3) trial counsel was ineffective in failing to file a
motion to suppress the letters admitted as evidence against him at trial; (4)
appellate counsel was ineffective in failing to raise the issue of the superior
court’s denial of trial counsel’s motion for a continuance; (5) PCR counsel
was ineffective in failing to raise his earlier stated claims, thus “forcing
[Hardy] to proceed pro se”; (6) PCR counsel was ineffective in failing to
obtain the voir dire transcript; and (7) PCR counsel was ineffective in filing
the Rule 32.6(c) notice of no colorable claim and “le[aving Hardy] to fend
for [him]self in an unfair fight.” None of Hardy’s arguments relied on
information revealed by the newly obtained voir dire transcripts.

¶8 After supplemental briefing, the superior court issued a
reasoned decision addressing each issue raised by Hardy and denying his
request for relief. The court found no “material issue of fact or law that
would entitle [Hardy] to relief.” Ariz. R. Crim. P. 32.11(a).

¶9 Hardy timely petitioned for review. We exercise our
discretion to grant review. See A.R.S. § 13-4239(G); Ariz. R. Crim. P.
33.16(k).

DISCUSSION

¶10 We review the superior court’s decision on a petition for post-
conviction relief for an abuse of discretion: here, either legal error or an
inadequate investigation of the facts needed to support the decision. State
v. Pandeli, 242 Ariz. 175, 180 ¶ 4 (2017).

¶11 In his petition for review, Hardy contends the court erred by
rejecting his IAC claims without conducting an evidentiary hearing. He

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again alleges ineffective assistance of trial, appellate, and PCR counsel,
which he urges he could have established if the superior court had allowed
him to proceed with an evidentiary hearing.

¶12 In post-conviction relief proceedings, the defendant bears the
burden of proving factual allegations by a preponderance of the evidence.
Ariz. R. Crim. P. 32.13(c). To be entitled to an evidentiary hearing, a
defendant must state a colorable claim, which requires that he “allege[]
facts which, if true, would probably have changed the verdict or sentence.”
State v. Anderson, 257 Ariz. 226, 234 ¶ 34 (2024) (quoting State v. Amaral, 239
Ariz. 217, 220 ¶ 11 (2016)).

The Superior Court Did Not Abuse Its Discretion in Finding that
Hardy’s Factual Allegations Did Not Amount to a Colorable Claim
of IAC.

¶13 In evaluating IAC claims, our courts have adopted the two-
part test first set forth in Strickland v. Washington, 466 U.S. 668 (1984),
requiring both that (1) counsel’s performance was deficient considering
prevailing professional norms; and (2) a reasonable probability exists that
but for counsel’s unprofessional errors, the result of the proceeding would
have been different. Anderson, 257 Ariz. at 233 ¶ 27. As to the first prong,
we “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.” Pandeli, 242
Ariz. at 181 ¶ 7 (quoting Strickland, 466 U.S. at 689).

A. Hardy Has Not Stated a Colorable Claim of Ineffective
Assistance of Trial Counsel.

¶14 The superior court did not abuse its discretion in finding that
Hardy’s “claims regarding flaws in trial counsel’s representation are
tactical decisions solely within the purview of trial counsel.” See Pandeli,
242 Ariz. at 182 ¶ 15 (“Disagreements as to trial strategy or errors in trial
will not support a claim of ineffective assistance of counsel as long as the
challenged conduct could have some reasoned basis.” (quoting State v.
Meeker, 143 Ariz. 256, 260 (1984))). Hardy has not met his burden of
establishing that trial counsel’s decision not to call certain witnesses, engage
a handwriting expert, or move to suppress the letters was “not a tactical one
but, rather, revealed ineptitude, inexperience or lack of preparation.” State
v. Bigger, 251 Ariz. 402, 408 ¶ 10 (2021) (quoting State v. Goswick, 142 Ariz.
582, 586 (1984)).

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Decision of the Court

¶15 Hardy contends there “are no facts contained in the trial
record to support” the superior court’s finding that trial counsel’s decisions
were strategic or tactical. Our supreme court has made clear, however, that
the “reasonableness determination can be made without reference to any
external authority and without an evidentiary hearing, as trial judges will
ordinarily possess the expertise necessary to make such a determination.”
Bigger, 251 Ariz. at 408 ¶ 14. Moreover, the burden is on Hardy to
“overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Pandeli, 242 Ariz. at 181
¶ 7 (quoting Strickland, 466 U.S. at 689). Hardy has not done so, and as a
result the superior court did not abuse its discretion in finding that Hardy’s
allegations did not amount to a colorable claim of ineffective assistance of
trial counsel.

B. Hardy Has Not Stated a Colorable Claim of Ineffective
Assistance of Appellate Counsel.

¶16 “A colorable claim of ineffective assistance of appellate
counsel is a claim which, if true, might have changed the outcome.” State
v. Febles, 210 Ariz. 589, 595 ¶ 18 (App. 2005). As with trial counsel, a strong
presumption exists that appellate counsel provided effective assistance. Id.
at 596 ¶ 20. Appellate counsel is afforded wide discretion in judging which
issues are appealable and need not “raise every possible or even
meritorious issue on appeal.” State v. Herrera, 183 Ariz. 642, 647 (App.
1995). As a result, “[a]ppellate counsel is not ineffective for selecting some
issues and rejecting others,” and “appellate counsel’s waiver of other
possible issues binds the defendant.” Id. In sum, a claim of ineffective
assistance of appellate counsel is not colorable “in the absence of evidence
that the failure to raise additional issues fell below prevailing professional
norms and would have changed the outcome of the appeal.” Id.

¶17 Hardy argued below that his appellate counsel was
ineffective in failing to raise the issue of the superior court’s denial of trial
counsel’s motion for a continuance. But Hardy has not “submit[ted] any
evidence from which the court could reasonably conclude that had the
other issues been raised, we would have resolved the appeal any
differently.” Id. In fact, on appeal, we addressed each of the issues raised
by Hardy in his supplemental brief and “conducted an independent review
of the record,” which “revealed no fundamental error.” State v. Hardy, No.
1 CA-CR 22-0298, 2023 WL 3590692, at *3 ¶ 18 (Ariz. App. May 23, 2023).
Thus, even if appellate counsel had raised the superior court’s denial of trial
counsel’s motion to continue, it would not have changed the outcome of the
appeal. As a result, the superior court did not abuse its discretion in finding

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that Hardy’s allegations did not amount to a colorable claim of ineffective
assistance of appellate counsel.

C. Hardy Has Not Stated a Colorable Claim of Ineffective
Assistance of PCR Counsel.

¶18 Although Rule 32.5 allows the superior court to appoint PCR
counsel for indigent defendants, there is no constitutional guarantee of
effectiveness. State v. Krum, 183 Ariz. 288, 292 n.5 (1995) (“The United States
Supreme Court has made clear that, at least when a defendant is entitled to
a direct appeal with the assistance of counsel, there is no constitutional right
to counsel or effective assistance in post-conviction proceedings.”); Coleman
v. Thompson, 501 U.S. 722, 752 (1991) (“There is no constitutional right to an
attorney in state post-conviction proceedings. . . . Consequently, a petitioner
cannot claim constitutionally ineffective assistance of counsel in such
proceedings.”).

¶19 Moreover, even if we were to apply the Strickland analysis as
the superior court did, Hardy has still not stated a colorable claim for relief.
The superior court correctly noted that Hardy’s disagreement with PCR
counsel’s assessment is not a basis to find the representation ineffective.
PCR counsel fully complied with Rule 32.6(c) in filing the notice of no
colorable claim. And even if PCR counsel were ineffective in failing to
obtain the voir dire transcript, Hardy nevertheless obtained the transcript,
rendering the issue moot. Hardy did not rely on any information revealed
by the transcript in his supplemental briefing, and the superior court
independently reviewed the transcript and found no merit to Hardy’s
challenges to the voir dire process. Again, even if PCR counsel had obtained
the voir dire transcripts, Hardy’s PCR petition would not have been resolved
any differently.

CONCLUSION

¶20 For the foregoing reasons, we grant review but deny relief.

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

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