State v. Brakhop, 1 CA-CR 16-0510-PRPC

Dale Brakhop was charged with multiple counts including sexual exploitation of a minor, sexual conduct with a minor, child molestation, and bestiality after photographs/videos and sexual conduct with a young child were recorded.
Brakhop pleaded guilty to one count of sexual conduct with a minor, one count of attempted sexual conduct with a minor, and one count of attempted sexual exploitation of a minor under a plea agreement: 20 years’ imprisonment for the sexual conduct count and lifetime probation for the other two counts.
Brakhop filed a timely petition for post-conviction relief (PCR). Appointed counsel found no colorable claims; Brakhop filed pro se alleging ineffective assistance of trial and PCR counsel and that the superior court erred in denying his motion to change trial counsel before his plea.
The superior court summarily dismissed the PCR petition. Brakhop petitioned for review in the Court of Appeals.
The Court of Appeals granted review but denied relief, holding Brakhop failed to present colorable claims warranting relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance — failure to investigate	Brakhop: trial counsel did not adequately investigate; additional investigation would have found exculpatory evidence	State: claim too general; petitioner did not identify what additional evidence would have been found or how it would change outcome	Denied — claim not colorable for lack of specific prejudice showing under Strickland
Ineffective assistance — failure to expose alleged police lies	Brakhop: counsel could have impeached officers and a jury would credit him over police	State: even if impeached, videotapes/photos provide overwhelming evidence of guilt	Denied — no reasonable probability of different outcome given audiovisual evidence
Denial of motion to change counsel	Brakhop: superior court violated his rights by denying change of counsel before plea	State: claim waived by guilty plea; missing hearing transcript presumed to support court’s ruling	Denied — waived and record presumed to support denial
Ineffective assistance of PCR counsel	Brakhop: PCR counsel was ineffective	State: ineffective PCR counsel is cognizable only in a Rule 32 proceeding	Denied here but claim cognizable in a subsequent Rule 32 petition within time limits

State v. Gutierrez, 229 Ariz. 573 (2012) (standard for appellate review of PCR rulings)
Gallego v. McDaniel, 124 F.3d 1065 (9th Cir. 1997) (prejudice requires showing what investigation would have uncovered)
Hendricks v. Calderon, 70 F.3d 1032 (9th Cir. 1995) (same; prejudice prong requires beneficial evidence from investigation)
Strickland v. Washington, 466 U.S. 668 (1984) (ineffective assistance standard: performance and prejudice)
State v. Quick, 177 Ariz. 314 (App. 1993) (guilty plea waives non-jurisdictional defects including most ineffective assistance claims)
State v. Geeslin, 223 Ariz. 553 (2010) (missing portions of record presumed to support trial court’s ruling)
State v. Pruett, 185 Ariz. 128 (App. 1995) (ineffective assistance of PCR counsel cognizable in subsequent Rule 32 proceeding)
State v. Bortz, 169 Ariz. 575 (App. 1991) (issues in petition for review must have been raised in superior court)