State v. Floyd

Opinion

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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.

JONATHAN EUGENE FLOYD, Petitioner.

No. 1 CA-CR 25-0563 PRPC

FILED 09-02-2026

Petition for Review from the Superior Court in Yavapai County No. P1300CR202001399

The Honorable Debra R. Phelan, Judge

REVIEW GRANTED; RELIEF DENIED

APPEARANCES

Yavapai County Attorney’s Office, Prescott By Karolina Czaplinska Counsel for Respondent

Jonathan Eugene Floyd, Phoenix Petitioner

Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael J. Brown, Judge Veronika Fabian, and Vice Chief Judge David D. Weinzweig delivered the decision of the Court.

PER CURIAM:

¶1 Jonathan Eugene Floyd seeks review of the superior court’s dismissal of his post-conviction relief (“PCR”) petition filed under Arizona Rule of Criminal Procedure (“Rule”) 32.1. We grant review but deny relief.

BACKGROUND

¶2 In October 2020, Floyd was driving a pickup truck south on Highway 93, about thirty miles north of Wickenburg. State v Floyd, No. 1 CA-CR 22-0591, 2023 WL 8590721, at *1, ¶ 2 (Ariz. App. Dec. 12, 2023) (mem. decision.). A semi-truck driver was driving north on the highway. Id. A family of seven in a van traveled behind the semi-truck. Id. The semi- truck driver noticed Floyd’s truck veering too close to the northbound traffic, grazing the double yellow lines that separated north and southbound traffic. Id. at ¶ 3. As Floyd crossed over those lines, the semi- truck driver swerved onto the highway shoulder to avoid a collision, but Floyd collided with the semi-truck’s rear tires, projecting his truck onto the van and killing two children. Id. at ¶ 4. A reconstructionist testified that after hitting the semi-truck, Floyd’s speed was likely 30 to 43 miles per hour when striking the van. Id.

¶3 After the crash, a paramedic treated Floyd and asked him questions. Id. at ¶ 5. Floyd eventually admitted he had consumed alcohol. Id. The paramedic ordered a helicopter to transfer Floyd to a hospital in Phoenix. Id. About four hours after the crash, Floyd’s blood alcohol content (“BAC”) was 0.066, and he tested positive for Benadryl. Id. At trial, the State’s toxicologist testified that a retrograde analysis of Floyd’s BAC suggested an alcohol level ranging from 0.092 to 0.145 at the time of the crash. Id. at ¶ 7. Floyd’s expert testified that Floyd’s BAC could have ranged from 0.066 to 0.204. Id.

¶4 The jury returned a unanimous verdict, convicting Floyd of two counts of second-degree murder, four counts of aggravated assault, and one count each of endangerment and criminal damage. The jury also

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returned aggravation verdicts for the convictions, finding that Floyd committed the offenses while on community supervision. The court sentenced Floyd to an aggregate sentence of 58 flat years, with credit for 707 days’ presentence incarceration. Floyd timely appealed, and this court affirmed Floyd’s convictions and sentences. Floyd, at ¶ 1.

¶5 Floyd filed a PCR notice, and the superior court appointed counsel to represent him. Floyd’s counsel filed a notice of no colorable claims for relief and requested that the court allow Floyd to file a pro se PCR petition. Floyd filed his PCR petition raising several claims. The State failed to respond to the petition. Even so, the court independently reviewed the record and denied relief, finding no colorable claim.

¶6 Floyd petitioned this court for review. We have jurisdiction under A.R.S. § 13-4239(C) and Rule 32.16.

DISCUSSION

¶7 In his review petition, Floyd raises the following claims: (1) double jeopardy, (2) violation of his right to remain silent, and (3) ineffective assistance of counsel (“IAC”). We review a superior court’s PCR rulings for an abuse of discretion. State v. Bigger, 251 Ariz. 402, 407, ¶ 6 (2021). When the court commits an error of law or fails to investigate the facts supporting its decision adequately, it constitutes an abuse of discretion. State v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017). Floyd bears the burden of proving the court abused its discretion by denying post- conviction relief. State v. Reed, 252 Ariz. 236, 238, ¶ 6 (App. 2021).

¶8 Floyd’s first two claims are precluded. Rule 32.1(a) allows a defendant to claim that his or her conviction resulted from a “violation of the United States or Arizona constitutions.” But a defendant is precluded from relief under Rule 32.1(a) based on any ground waived on appeal. Ariz. R. Crim. P. 32.2(a)(3). Floyd did not raise either a double jeopardy claim or a Fifth Amendment claim on appeal, so the issues are waived. See State v. Medina, 232 Ariz. 391, 400, ¶ 15 (2013) (Because defendant “could have raised” his constitutional claim in his appeal, he waived the issue). Our supreme court has consistently required that parties “strictly comply” with the PCR rules to be entitled to relief. Canion v. Cole, 210 Ariz. 598, 600, ¶ 11 (2005).

¶9 Floyd’s IAC claims are not precluded under Rule 32.2(a)(3). State v Diaz, 236 Ariz. 361, 363, ¶ 10 (2014) (acknowledging a criminal defendant “may not present an IAC claim until the first PCR proceeding”). Whether Floyd received “[IAC] is a mixed question of fact and law,” which

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we review de novo. State v. Denz, 232 Ariz. 441, 444, ¶ 6 (App. 2013) (recognizing that both the prejudice and performance prongs of an IAC claim are mixed questions of law and fact). While we defer to the PCR court’s factual findings about IAC, we review the ultimate legal conclusion de novo. Id. Whether a defendant has presented a colorable claim warranting a hearing is reviewed for an abuse of discretion. State v Amaral, 239 Ariz. 217, 219, ¶ 9 (2016).

¶10 To prevail on an IAC claim, a defendant must prove deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). In proving deficient performance, the defendant must prove that counsel’s representation “fell below an objective standard of reasonableness.” Hinton v. Alabama, 571 U.S. 263, 272 (2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 366 (2010)). We measure the standard of reasonableness by the “practice[s] and expectations of the legal community.” Padilla, 559 U.S. at 366. A strong presumption exists that “counsel’s conduct falls within the wide range of reasonable professional assistance” that “might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (quotation omitted). To overcome the presumption, a defendant is “required to show counsel’s decisions were not tactical in nature, but were instead the result of ineptitude, inexperience or lack of preparation.” Denz, 232 Ariz. at 444, ¶ 7 (quotation omitted); State v. Speers, 238 Ariz. 423, 427, ¶ 12 (App. 2015). Courts must aim to “eliminate the distorting effects of hindsight,” and “evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689.

¶11 If a defendant shows deficient performance, the inquiry shifts to whether the deficient performance caused prejudice. Strickland, 466 U.S. at 687; State v. Miller, 251 Ariz. 99, 102, ¶ 9 (2021). To establish IAC prejudice, a defendant needs to show a “reasonable probability” that, but for counsel’s errors, the result of the proceeding would have been different. Miller, 251 Ariz. at 104, ¶ 17. In other words, a defendant must show that counsel’s errors deprived him or her of a fair trial with a reliable result. Id. Although a defendant must satisfy both prongs of the Strickland test to succeed on an IAC claim, a reviewing court need not address both components if the defendant makes an insufficient showing on one. State v. Beaty, 158 Ariz. 232, 249 (1988); State v. Salazar, 146 Ariz. 540, 541 (1985).

A. Impeaching a Witness

¶12 Floyd claims that he received IAC based on counsel’s inability to effectively impeach Detective Ritchie about accident reconstruction conclusions. During counsel’s cross-examination, he asked about the

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foundation for Ritchie’s conclusions on some aspects of the crash by reading a statement from his police report. The State objected to trial counsel reading from the report. The court sustained the objection, informing counsel that “[y]ou’ll have to either paraphrase or ask him if he remembers what he said.” Counsel proceeded as instructed by the court, questioning Ritchie on various aspects of his methodology and conclusions. Counsel concluded the cross-examination with the following:

Q. You cannot prove how the van struck—sorry—how the Tacoma struck the van, correct, the theory that you testified to?

A. The part that I’m -- I don’t think I’m able to prove is the part after a tire came into contact with the right front headlight assembly of the Tacoma (sic) and the dynamics—so this is what I don’t think I can prove: is the dynamics of the Tacoma as it strikes the van with that tire, whichever tire it was that strikes the van, and then the dynamics taking it from that right front headlight assembly to the left side of the van. That’s the part that I don’t know what happened. I don’t know what those dynamics entailed.

Q. So, you can’t prove something but you’re still willing to testify to it, correct?

A. To give an opinion or a theory when asked, yes.

¶13 As noted by the superior court, Floyd failed to even allege how counsel was precluded from impeaching the detective by proceeding in the manner directed by the court. The court did not abuse its discretion by determining Floyd failed to allege a colorable IAC claim on this issue.

B. Illustrative Aids

¶14 Floyd asserts that his counsel was ineffective by failing to object to the admission of certain exhibits, thereby allowing them to be given to the jury during deliberations. In denying the PCR petition, the superior court set out the procedure used and how it relates to Floyd’s claim:

The illustrative aids at issue here are drawings by the witness during testimony. During trial, the Court utilized the digital evidence program created by the Administrative Office of the Courts. The parties uploaded exhibits into the

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portal, and the admitted exhibits were shown to the jury during trial on a large display screen in the courtroom. During trial testimony, the Court’s technology included a “touch pad” at the witness chair, which allowed witnesses to use their finger to circle points on an admitted exhibit being published to the jury in an effort to allow jurors to better understand a witness’s description of specific portions of an exhibit. Once a witness used their finger to circle something on an admitted Exhibit or draw markings on the Exhibit, the parties then took a photograph, during trial, of the overlay of the witness’s drawing. That photograph was then added to the digital evidence portal. These exhibits were admitted as evidence, and the jury properly had all admitted exhibits with them during deliberations.

The “illustrative exhibits” Floyd points to are the State’s exhibits 90–99. His exhibit 3 was also admitted using the same procedure.

¶15 Floyd bases his claim on Arizona Rule of Evidence 107. But our supreme court did not adopt that rule until August 22, 2024, and it only became effective on January 1, 2025. Because Floyd’s trial occurred in 2022, the rule offers no support to his claim that his attorney should have based an objection on the rule. Before the adoption of the rule, marked on exhibits or diagrams were “widely accepted to illustrate other evidence and to assist the jury in understanding testimony,” and the admission of such exhibits fell “within the sound discretion of the trial judge.” State v. Doerr, 193 Ariz. 56, 62, ¶ 47 (1998).

¶16 Even assuming the exhibits were “illustrative aids” under Arizona Rule of Evidence 107, the rule allows for such exhibits to be given to the jury during deliberations if “all parties consent.” Ariz. R. Evid. 107(b)(1). Here, the State and Floyd’s counsel consented to the admission of the exhibits if both sides’ exhibits were treated the same. Given the prevailing evidentiary law at the time of the trial, counsel’s decision was a tactical decision within professional norms. See Bigger, 251 Ariz. at 408, ¶ 12 (noting that “matters of trial strategy and tactics are committed to defense counsel’s judgment and cannot serve as the basis for an IAC claim”) (quotation and citation omitted). Floyd has not shown the court abused its discretion.

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C. Failure to Investigate

¶17 Floyd claims that his counsel failed to investigate his case, leaving counsel unprepared to seek suppression of statements Floyd made after his arrest or to properly impeach Detective Ritchie. These claims lack merit.

¶18 When the State asked Detective Ritchie about questions he had asked Floyd after being arrested, counsel objected, and an off-therecord discussion ensued. Counsel told the court, “I am just wondering where this is going, because my client did invoke and refuse to answer the questions.” The State informed the court that the question was about booking information, and the detective knew not to mention the invocation. Counsel was not unprepared. He knew Floyd had invoked his right to remain silent and appropriately objected.

¶19 As discussed above, trial counsel extensively cross-examined Ritchie in accordance with the court’s instructions. Floyd offered no evidence that there was more impeachment evidence that counsel omitted based on a lack of preparation. The superior court did not err by determining he failed to present a colorable claim.

D. Failure to Withdraw

¶20 Floyd argues that defense counsel should have withdrawn. Both the PCR petition and the petition for review are short on specifics for this claim. But the superior court understood the claim based on its familiarity with the case.

¶21 On September 26, 2022, the court presided over an evidentiary hearing for a motion by the State to admit evidence under Arizona Rule of Evidence 404(b). Before the hearing, counsel moved to continue the trial. The basis for the motion to continue was the 404(b) issue. Counsel explained that he would not need a continuance if the court denied the State’s request. The court ultimately precluded the State’s 404(b) evidence.

¶22 While counsel did state on the record that he would be ineffective if the court denied his continuance motion, that was based on his need to investigate further the circumstances surrounding the 404(b) evidence. As the superior court acknowledged about that representation:

The Court record reflects [counsel] engaged in extensive pretrial litigation, filing motions and responding in objection

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to motions by the State. [Counsel] argued to Defendant’s benefit throughout the trial, raising objections, and called an expert witness during trial. After conviction, [counsel] filed a Sentencing Memorandum and advocated for the Court to impose minimal, concurrent sentences for Defendant. All of this demonstrates [counsel] actively and zealously engaged in the representation of Defendant.

Floyd has not shown the court abused its discretion by denying his PCR petition.

CONCLUSION

¶23 We grant review but deny relief.

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