State v. Dwyer, 1 CA-CR 15-0858-PRPC

In 2009 a jury convicted Dennis Edward Dwyer of second-degree burglary and aggravated assault; he was sentenced as a repetitive offender to concurrent, aggravated 15‑year terms.
This court affirmed on direct appeal.
Dwyer filed a timely Rule 32 post-conviction petition asserting multiple ineffective-assistance-of-counsel (IAC) claims: poor communication, inadequate investigation, failure to interview or fully cross-examine witnesses, no opening statement, weak arguments on judgment of acquittal, sentencing and aggravation, and counsel’s alleged substance use during trial.
The superior court summarily dismissed the petition, finding Dwyer failed to show deficient performance or resulting prejudice.
The superior court noted evidence suggesting counsel used drugs/alcohol around trial, but concluded substance use alone does not establish per se IAC and the record did not show impairment causing presumptive prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel’s various alleged omissions constituted deficient performance	Dwyer: counsel failed to investigate, communicate, call/interview witnesses, give opening, and make meaningful arguments	State: Petition lacks specific showing that counsel’s acts/omissions were objectively unreasonable or altered outcome	Denied — Dwyer failed to show prejudice; summary dismissal appropriate
Whether counsel’s drug/alcohol use during trial created per se ineffective assistance	Dwyer: substance use impaired counsel and presumptively prejudiced the defense	State: Substance use alone is not per se IAC; must show impairment affected representation	Denied — record does not show impairment so severe as to cause presumptive prejudice
Whether an evidentiary hearing was required on IAC claims	Dwyer: factual disputes (including counsel impairment) require hearing	State: No colorable claim shown under Strickland; no purpose for further proceedings	Denied — no colorable claim; summary dismissal not abuse of discretion
Whether prejudice can be presumed given asserted failures	Dwyer: cumulative failures and alleged impairment undermined confidence in outcome	State: No reasonable probability of different result shown	Denied — petitioner did not meet Strickland prejudice prong

Strickland v. Washington, 466 U.S. 668 (1984) (two‑pronged standard for IAC: deficiency and prejudice)
State v. Bennett, 213 Ariz. 562 (2006) (standard of review for summary dismissal of Rule 32 petitions)
State v. Krum, 183 Ariz. 288 (1995) (colorable claim requirement for evidentiary hearing)
State v. Lemieux, 137 Ariz. 143 (App. 1983) (view allegations in light of entire record when assessing colorability)
State v. Salazar, 146 Ariz. 540 (1985) (no need to reach both Strickland prongs if one fails)
State v. D’Ambrosio, 156 Ariz. 71 (1988) (drug/alcohol abuse by counsel alone does not establish per se IAC)
State v. Nash, 143 Ariz. 392 (1985) (discusses presumptive prejudice where counsel is essentially a neutral observer)