*1 P.2d 830 Arizоna, Appellee, STATE PACHECO, Appellant. Nunez
Richard
No. 4375. Arizona,
Supreme Court
En Banc.
Nov.
with a conviction. We felony jurisdiction pursuant to 17A A.R.S. Su- Rules, 47(e). preme Court rule We affirm. appeal: Pacheco raises four issues on whether the warrantless search a package possession of a com- lawful; mon carrier was 2. whether minimum mandatory sen- provisions tences under the reсidivist and 36-1002.- A.R.S. 36-1002.02 pun- cruel and unusual constitute ishment; 3. whether admission on the Pacheco’s prior felony stand of a conviction is a felony sufficient evidence of jury question, a conviction to create and if so whether his conviction under the Federal Youth Corrections Act may properly used as the basis for provi- sentencing under the recidivist siоns of 36-1002.02 and 36- A.R.S. §§ 1002.07; and 4. whether Pacheco’s trial counsel was a ineffective as constitute denial of the to counsel. right THE SEARCH depot the bus Phoenix entered Kingman package shipped with a to be about fifteen before the bus was minutes handed a depart. scheduled to He small wrapped box counter em- package to the plоyee (employee). employee The testified nervous, very refus- appeared that Pacheco address, gave give ed to and return placed employee his first name. The package envelope” box in an “express left. sealed it. Pacheco then LaSota, Jr., Atty. John A. Gen. Wil- the transaction circumstances Schafer, Jarrett, liam J. III and Barbara A. suspicious caused the to become employee Gen., Phoenix, for Attys. appellee. Asst. package’s opened of the content. He by William H. McLe- green Stewart & McLean package and it contained found an, Phoenix, appellant. leafy balloon. He substance and a small bоx,
the closed the en- put back HAYS, velope, placed called the it in a locker and Justice. Richard Nunez Pa- appeal by This is an (after About an the bus had and sentence un- hour later
checo from his conviction 36-1001, left), policeman 36- and took the 36-1002.02 and arrived der A.R.S. §§ package opened from then narcotic the locker. He transportation 1002.07 marijuana, each contained a sub- drug and found it transportation disproportionate convictions either stance which was later to be determined charged so severe marijuana. bal- crime or is as to shock It also a small contained community. sense powder loon filled with a later moral which was undisputed found be heroin. It is Davis, Ariz. In State open the officer probable cause to upheld 36-1002.07 *3 a he had obtained and that not There, the we noted against same attack. search warrant before hand. proper a case and at a proper that “[i]n may particular penalty a time we find a war conducted without Seаrches society. the conscience of severe as shock per probable rant even on cause are if based holdings to be will have Such unreasonable, spe few subject only se to a approach which will on a case-by-case made ex cifically established well-delineated society mores of at gеneral conform to the Bustamonte, 412 ceptions. v. Schneckloth 337, Id. at 498 of the decisions.” the time 2043-44, 218, 219-20, 2041, 36 93 S.Ct. 204. We then concluded that A.R.S. P.2d at 854, (1973). excep L.Ed.2d 858 One such shock “collective did not the 36-1002.07 § present is when valid consent 338, Id. at 498 P.2d society.” conscience of search has obtained. Id. been We We do not believe it does. at 205. still Fassler, 108 We in held State v. that both 36- therefore conclude A.R.S. §§ 586, 807, (1972), 591, P.2d 812 that Ariz. 503 are constitutional. and 36-1002.07 1002.02 may parcels en “common carriers search they trusted to when have reason them PRIOR CONVICTION parcels contraband believe the contain ” since no documenta- argues that a . also to such They may consent conviction was ever prior evidence of his ry the Id. find that search the We evidence, into his con- or admitted offered the squarely of fall within facts this case and 36- under 36-1002.02 §§ viction A.R.S. Fassler, id., holding of the search that disagree. We 1002.07 must be overturned. therefore reasonable.1 question was documentary no evidence evidence, MINIMUM MANDATORY SENTENCES into Pa offered or admitted was during his trial that he had checo tеstified his sentenc challenges Pacheco also crime prior felony conviction the same provisions of A.R.S. ing under the recidivist alleged, date and at alleged, on the same 36-1002.07 as violative 36-1002.02 and §§ place alleged. We held in v. the same punishment prohibi the cruel and unusual 498, 500, 517, Ariz. 421 P.2d Seymour, 101 not the amendment. We do eighth tion of (1966), may former conviction 519 that a agree. ad sufficiently established the accused’s Espinosa, Ariz. 421 In State v. 101 testifying mission while court. Pacheco’s upheld 36- (1966), A.R.S. § P.2d stand was sufficient admission on the as violative of the constitutional 1002.02 establish his conviction. prior pun- cruel and unusual prohibition against “ argues even if There, long as Pacheco also ishment. we held that ‘[a]s priоr convic propor- his in-court admission punishment approximately the is jury ques to create a not so tion was sufficient type tionate to of crime and the tion, be re prior the his conviction must not the sense of severe as to shock moral sentencing purposes community, necessarily garded within such its extent ” 36-1002.07, Id. 36-1002.02 and legislature.’ at under thе discretion of was under the Federal believe since conviction at 325. We do not P.2d (Youth Act), 18 Act under Youth Corrections penalty applied increased seq. purpose felony who et those U.S.C. this statute to obviously Chadwick, defendants who did not consent 433 U.S. 1. Cf. United States search, possession to a not from the of a com- where did, as in pоssession mon carrier who this case. footlocker was taken from Assuming oppose of the failure to give youthful the Youth Act is to intentional, decisions, such motion completed who has his sentence and fender during litigation, made the course of are of vacation of convic received a certificate judgmental Although opposing in nature. chance and a clean record. tion a second might preferable have been motion 11, 13 (6th Fryer, 545 F.2d United States retrospect, previously we have held that 1976). A offender who has youthful Cir. judgment matters of or tactics will not be sen may his conviction vacated not be light hindsight. in the harsh reviewed using under a recidivist statute tenced Watson, 1, 14, State v. 114 Ariz. 559 P.2d conviction under the Youth Act as the denied, 121, 133(1976), 986, 97 cert. 430 U.S. conviction, sentencing since such would of (1977); L.Ed.2d 382 State v. very purpose fend the of the Act. Id. at Pietsch, 109 Ariz. However, position 13-14. Pacheco is in no hand, On the other if the failure to challenge the use of his Youth Act con *4 oppose the motion was an oversight by provisions viction under the recidivist counsel, such conduct is inexcusable. None since 36-1002.02 and 36-1002.07 §§ theless, prejudiced if Pacheco was not alleged proved he neither nor that he had thereby, a new trial is not warranted. We completed his sentence under the Youth Act prejudiced do not believe Pacheco was by nor that he had ever been issued a сertifi counsel’s oppose failure to the motion since pursuant cate of vacation of conviction to required prove the state was still to 5021(b) (1970).2 18 U.S.C. § prior beyond conviction a reasonable doubt and since we have concluded above that the EFFECTIVENESS OF COUNSEL youth properly conviction was used. who repre- Pachecо claims that counsel apparent Counsel’s lack of preparation is sented him before and at his trial was also inexcusable. There is no question that right ineffective that he was denied the to counsel should have been prepared argue to guaranteed by the counsel sixth amend- the issue when his client was arraigned. ment of the United States Constitution and However, we do not find that his lack of II, by article section 24 of the Arizona Con- preparation prejudice resulted in to Pacheco agree. since, stitution. We do not just indicated, as we the state was required prove still beyond to a reasonable Arizona, a conviction must be set doubt that prior Pacheсo had a felony con- representation by if the afforded aside viction and since we have already concluded counsel is so ineffective that it can be char prior that Pacheco’s conviction properly was amounting to a “farce or a acterized used as a basis sentencing under A.R.S. 186, Kruchten, sham.” 101 Ariz. State 36-1002.02 and 36-1002.07. сert, 197, 510, denied, 417 P.2d 521 784, 385 87 Suppress: Motion to showing The burden of such is on Pacheco claims counsel rep- that failed to Daniel, alleging. the one so State v. 25 effectively by resent him not making an 592, 593, Ariz.App. 441 adequate suppress motion to the evidence obtained the search and seizure discussed Object to to Prior Conviction : Failure earlier opinion. Although in this counsel County Attorney moved to did make a “Motion Suppress Tangible to following filing the information its amend trial, prior Evidence” the motion did allege to conviction. Counsel for specifically describe the sought evidence In ad opposed Pacheco never that motion. suppressed, supported nor was it by a ditiоn, the trial several months later when points memorandum of and authorities. No commenced, research hearing counsel had done no was suppression ever held on the issue. regarding the conviction. fact, custody violating parole shows at the time of
2. In the record that in federal offenses, part his arrest on the above Paсheco was which was Youth Act sentence. alone, alleged informant. He facts Pacheco identification of an
Based on these citing new trial is entitled to a evidence and wit- produce claims he avowed he would P.2d Ariz.App. Lopez, State informant’s prove nesses to existence when counsel’s (1966). Lopez holds that We do not find on but later failed to do so. withdrawing in the “results ineffectiveness was denied effec- these facts that Pacheco case,” crucial defense from First, Pacheco has neither tive counsel. been denied. Id. at right to counsel has alleged appeal infor- nor shown on Lopez inap P.2d at 886. We find exist, mant Even if one did Pache- еxisted. There, failed altogether counsel had posite. prejudiced by co has not shown he admissibility evidence. challenge the Second, identity. nondisclosure his Here, on the at 412 P.2d at Id. may well have been a tactical decision not hand, suppres for its counsel moved other produce to later the evidence of such an sion, ineptly. impor More although rather informant, even if such evidence existed. admission of strongly objected he tantly, agree at trial. the evidence Objections: Proper Failure to Make when failure to “[tjhere are times object ques- to several Counsel failed in the can result suppress move to evidence drug activity regarding tions thе state farce,” v. Phil being a or trial sham companions certain of Pacheco. P.2d Ariz.App. lips, 16 prejudiced this omission claims result in this case. (1972), we find no such case. not result ineffectiveness did Counsel’s *5 “withdrawing crucial defense” [of] Although pointed by the instances out Lopez, supra. v. result in State was the susceptible have been to ob- Paсheco would jection, Pacheco’s defense was that these : Suppress Identification Motion companions by placing had framed him Iden- Suppress “Motion to Counsel filed a drugs in the which he believed This motion prior to the trial. tification” It was to his bene- contained another item. photo- to the identification referred had ac- companions fit to show that these A employee. the bus
graph of Pacheco users, drugs, they cess to were upon was continued hearing was held but drug activity gave possi- their them a It was never counsel. request of Pacheco’s planting drugs ble motive for on Pache- concluded. Pacheco, co, e., thereby i. to inform on heаring hopefully gaining to continue the favor with the In the failure If judg- was a part, case, object object any on counsel’s the decision to or not intentional not now at- and we will decision and we will mental is a difficult tactical decision Wat- him. second-guess tempt second-guess counsel. State v. not now son, if we assume Even supra. Watson, suprа. an over- hearing was of the
discontinuance
see,
counsel,
nor does
we do not
sight
Timely Prepare:
Failure to
assert,
argu-
any legitimate
now
Pacheco
inter-
claims that counsel had
ought to have
could or
which counsel
ment
only
day
viewed a defense witness
one
be-
reviewed the
hearing. Having
this
made at
testify
fore he cаlled her to
and that he was
nothing in
hearing, we find
of the
record
adequately prepared
ques-
therefore not
that could
proceeding
identification
her at trial.
sup-
good-faith motion to
supported a
prejudice re-
preparation
find no
late
is inadvis-
press. We therefore
such
able,
omission.
sulting
particular
from counsеl’s
shows that
this
the record
effectively by coun-
very
witness was used
Infor-
Compel
Identification
Motion
through
testimony
her
sel at trial and that
mant :
viable defense
presented
only
counsel
also shows that
Pacheco had. The record
trial,
for an
counsel moved
Prior to the
investigator who
employed
had
an
disclose the
counsel
the state to
compel
order to
previously
interviewed this witness and
trial was not reduced to a farce or a sham.
discussed the interview with counsel. The
inspection
Nor does our
pursu-
record
support
record
not
does
contention that
ant to
13-1715 reveal any
funda-
unprepared
counsel was
for trial.
mental error.
judgment
of conviction and the sen-
Discussion of Case with Pacheco:
tence are affirmed.
interviewed Pacheco
five
Counsel
preparation
times in
for the trial. Pacheco
CAMERON,
J., STRUCKMEYER,
C.
V.
claims that counsel was therefore not ade-
J.,
HOLOHAN, J.,
C.
concurring.
quately prepared to defend the case.
GORDON,
(concurring
part,
Justice
Undoubtedly,
almost
could
attorney
dissenting
part):
spend more
preparing
any given
time
Although I concur with the majority’s
exception.
trial and this trial was no
How-
disposition
presented
of the other issues
ever,
allegation,
we do not think that
this
decision,
this
disagree
I must
with its treat-
true,
require
even if
is so serious as to
Eighth
ment of defendant’s
Amendment
the trial
conclusion that
was a sham. The
challenge to
mandatory
minimum sen-
private
record shows that counsel hired a
light
tences.
of a line of United States
investigator
spent
who had
in-
much time
Supreme
beginning
Court
cases
with
terviewing
only possible
defense wit-
States,
Weems v.
United
217 U.S.
nesses, but also Pacheco himself.
It also
(1909),
S.Ct.
cussion objective informa- standards. Such
munity supplied in defendant’s amply Thus, properly defendant
opening brief. undertaking objec- an tools for
provided the community stan- analysis to ascertain
tive
dards, could and should and this Court such an task. Without
accomplished the subjective is indeed a decision
analysis, the what is shock- reflecting merely
judgment, Court, rather the conscience of the
ing to community.
than ap- whether question not reach the
I do viola- be deemed sentences should
pellant’s if this Court Eighth Amendment
tive of objective required perform the
were to
analysis. P.2d 836 Arizona, Appellee,
STATE ACREE, Appellant. Tilton
Charles
No. 4383. Arizona,
Supreme Court
En Banc.
Dec.