State v. Brown, 1 CA-CR 14-0567-PRPC

Elizabeth Haley Brown was convicted by a jury of possession/use of dangerous drugs and possession of drug paraphernalia; sentence aggregated to ten years and convictions were affirmed on direct appeal.
Brown filed a first petition for post-conviction relief (Rule 32) contending ineffective assistance of counsel related to a suppression motion and notice of a suppression hearing.
At issue drugs and paraphernalia were seized during a search incident to an arrest stemming from a traffic violation; Brown alleged the search was overly invasive (asked to remove her bra in public with male officers nearby).
Trial counsel filed a motion to suppress arguing lack of probable cause for the arrest but did not expressly argue the search was unduly invasive.
Brown also claims counsel failed to inform her of the suppression hearing date/time early enough to secure witnesses; the record shows Brown was present in court with counsel when the court set the hearing.
The trial court summarily dismissed Brown’s Rule 32 petition; the court of appeals granted review but denied relief.

Issue	Brown's Argument	State's Argument	Held
Whether counsel was ineffective for not arguing the search was too invasive	Counsel should have argued suppression because a female officer asked Brown to remove her bra while two male officers stood nearby	Counsel made a strategic choice to argue lack of probable cause; failure to add the invasiveness ground was trial strategy and not per se deficient	Denied — strategic choices are virtually unchallengeable; Brown failed to show a reasonable likelihood the court would have granted suppression on invasiveness grounds
Whether counsel was ineffective for failing to timely inform Brown of suppression hearing date/time	Counsel did not notify Brown early enough to arrange witnesses to attend and testify	Brown was present in court with counsel when the court set the hearing date/time	Denied — no colorable claim; Brown was present when the hearing was set
Whether Brown may raise additional ineffective-assistance claims on review that were not raised below	New claims can demonstrate ineffective assistance	State argues claims not raised in the trial court are procedurally barred on review	Denied — petition for review may not present issues not first presented to the trial court (procedural default)

Strickland v. Washington, 466 U.S. 668 (establishes performance and prejudice standards for ineffective assistance of counsel)
Kimmelman v. Morrison, 477 U.S. 365 (attorney ineffectiveness standard applied to Fourth Amendment suppression claims)
State v. Valdez, 160 Ariz. 9 (trial strategy decisions generally not ineffective assistance)
State v. Berryman, 178 Ariz. 617 (prejudice requirement for suppression-based ineffective-assistance claims)
State v. Ramirez, 126 Ariz. 464 (issues on review must first be presented to trial court)
State v. Wagstaff, 161 Ariz. 66 (same)
State v. Bortz, 169 Ariz. 575 (same)