Author: LegalEase Solutions
RESEARCH FINDINGS
Case Overview
Based on the facts provided, the following is a summary of the pertinent facts relating to Defendants’ possible claims for filing for post-conviction relief.
After Defendant was arrested, an Arizona Grand Jury indicted him on all four counts he was arrested on. In exchange for pleading guilty to possession of a dangerous narcotic, the other three charges were dropped. However, it must be noted that according to paragraph 4 of Defendant’s plea agreement (which he initialed and signed), in the event the immediate plea is withdrawn by either side or subsequently overturned, the original charges are automatically reinstated against Defendant.
Per the notes provided in this case, as well as Defendant’s Notice of Post-Conviction Relief, Defendant is alleging the following reasons for relief: (1) trial counsel failed to properly advise and request a Mitigation Hearing under A.R.C.P. 26.7; (2) trial counsel failed to properly advise and request a Rule 11 competency hearing; and (3) trial counsel failed to advise on whether Defendants sentences for the plea and his probation violation would be served consecutively or concurrently prior to accepting the plea.
The following is a discussion relating to those possible claims for relief. To begin with, all these claims revolve around ineffective assistance of counsel. That will be addressed first and then additional information regarding subsequent remedies will be discussed.
Post-Conviction Relief for Ineffective Assistance of Counsel
A defendant who plead guilty and files a petition for post-conviction relief under Ariz. R. Crim. P. 32, may make a claim for ineffective assistance of counsel. State v. Pruett, 912 P.2d 1357, 1360 (Ariz. App. 1995). A claim of ineffective assistance of counsel for purposes of a Rule 32 post-conviction relief petition, falls under Rule 32.1(a). Osterkamp v. Browning, 250 P.3d 551, 554 ¶ 10 (Ariz. App. 2011) (“The conviction or the sentence was in violation of the Constition of the United States or of the State of Arizona.”).
“To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant.” State v. Bennett, 146 P.3d 63, 68 ¶ 21 (Ariz. 2006). “By entering a guilty plea, a defendant waives all non-jurisdictional defects and defenses, including claims of ineffective assistance of counsel, except those that relate to the validity of a plea.” State v. Banda, 307 P.3d 1009, 1012 ¶ 12 (Ariz. App. 2013) (citing State v. Quick, 868 P.2d 327, 329 (Ariz. App. 1993)).
“But a defendant may obtain post-conviction relief on the basis that counsel’s ineffective assistance led the defendant to make an uninformed decision to accept or reject a plea bargain, thereby making his or her decision involuntary.” Id. (citing State v. Ysea, 956 P.2d 499, 504 ¶¶ 15, 17 (Ariz. 1998); State v. Donald, 10 P.3d 1193, 1198, 1200 ¶¶ 9, 14 (Ariz. App.2000)). “‘To establish prejudice in the context of a plea agreement, a defendant must show a reasonable probability that except for his lawyer’s error he would not have waived his right to trial and entered a plea.’” Id. (quoting Ysea, 956 P.2d at 504 ¶ 17).
Stated another way, in order “[t]o establish deficient performance during plea negotiations, a petitioner must prove that the lawyer either (1) gave erroneous advice or (2) failed to give information necessary to allow the petitioner to make an informed decision whether to accept the plea.” State v. Donald, 10 P.3d 1193, 1200 ¶ 16 (Ariz. App. 2000) (citing Hill v. Lockhart, 106 S.Ct. 366; State v. Bowers, 966 P.2d 1023, 1026 ¶¶ 12-13 (Ariz. App.1998)).
“To achieve a hearing on such a claim, a defendant must present more than a conclusory assertion that counsel failed to adequately communicate the plea offer or the consequences of conviction.” Id. at 1200 ¶ 17. “A petitioner need not provide detailed evidence, but must provide specific factual allegations that, if true, would entitle him to relief.” Id. (citing United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980)). “Further, a defendant should support such allegations by sworn statements or provide a satisfactory explanation of their absence.” Id. “In questions of post-conviction relief, however, ‘[w]hen doubts exist, a hearing should be held to allow the defendant to raise the relevant issues, to resolve the matter, and to make a record for review.’” Id. (quoting State v. Schrock, 719 P.2d 1049, 1057 (Ariz. 1986)).
Overall, “[a] guilty plea can only be valid when the plea represents a voluntary and intelligent choice among alternatives available to the defendant.” State v. Ysea, 956 P.2d 499, 504 ¶ 17 (Ariz. 1998) (citing Hill v. Lockhart, 106 S. Ct. 366, 370 (1985)). “The defendant must thoroughly understand the plea’s potential ramifications as well as the sentencing range and rights forfeited.” Id. (citing Ariz. R. Crim. P. 17.1(b), 17.2, 17.4(a); Sate v. Watton, 793 P.2d 80, 83 (1990)). “A defendant who has detrimentally relied on erroneous legal advice has been prejudiced because the plea could not have been knowing and voluntary and thus has not made an informed choice.” Id. Therefore, any plea that is found to be involuntary will be voided. See, id.
However, a claim for ineffective assistance of counsel because counsel failed to adequately explain how sentences would be imposed may not succeed. In State v. Castaneda, in an unpublished opinion, the Court of Appeals held that “such a claim necessarily evaporates when the defendant ultimately is provide the correct information before pleading guilty.” 2010 WL 4887613 (Ariz. App. Nov. 29, 2010) (citing State v. Short, 530 P.2d 905, 906-07 (1975) (holding that when [a] court correctly informs [a] defendant of sentencing range, incorrect sentencing information counsel previously provided does not render plea invalid.).
Analysis
Given the aforementioned law’s restrictions on an ineffective assistance of counsel claim resulting from a guilty plea, the only viable cause of action that Defendant seems to have is in regards to counsels failure to advise him that the plea and his parole violation would be served consecutively, not concurrently. Although Ysea and Donald seem to suggest such a claim would be viable, Castaneda and Banda seem to call that into question. Castaneda provides a principal that may or may not be accepted by another court because it was an unpublished decision. Additionally, Castaneda is factually different from the immediate case because Defendant was informed properly by the court at his sentencing hearing—after his guilty plea was accepted.
Nevertheless, the standard that must be met seems to come down to the “prejudice prong” of this claim. Specifically, when Defendant can legitimately argue that he would have not accepted a guilty plea of 2.5 years if he would have known he would have to serve the remaining 9-months of his previous sentence concurrent to that sentence. According to the notes provided, Defendant said he did not understand the sentencing hearing. But, according to the sentencing transcript, trial counsel stated that Defendant understood and accepted that the terms would run consecutively. Whether counsel was truthful or not or adequately advised Defendant prior to making that statement is unknown.
What is paramount here is whether Defendant can legitimately argue that he would not have accepted the plea if he knew and understood the consecutive term aspect prior to taking the plea. It is possible, but doubtful whether Defendant can make this argument and whether a Court will accept this argument.
Post-Conviction Relief for failure to have a Rule 11 Hearing
Rule 11 of Arizona Rules of Criminal Procedure deals with incompetency and mental examinations. Rule 11.2 states that:
“At any time after an information or complaint is filed or indictment returned, any party may request in writing, or the court on its own motion may order, an examination to determine whether a defendant is competent to stand trial, or to investigate the defendant’s mental condition at the time of the offense. The motion shall state the facts upon which the mental examination is sought. On the motion of or with the consent of the defendant, the court may order a screening examination for a guilty except insane plea pursuant to A.R.S. §§ 13-502 to be conducted by the mental health expert. In a capital case, the court shall order the defendant to undergo mental health examinations as required under A.R.S. § 13-703.02 and 13-703.03.”
By its plan language, a Rule 11 hearing is not mandatory. Overall, Rule 11 protects a defendant’s “due process right not to be tried or convicted while incompetent.’” State v. Cervantes, 2010 WL 4342250 (Ariz. App. Nov. 3, 2010) (quoting State v. Kuhs, 224 P.3d 192, 196 (2010)). In State v. Moody, 94 P.3d 1119 (Ariz. 2004), the Court has held that “[r]easonable grounds exist if there is sufficient evidence to indicate that the defendant is not able to understand the nature of the proceedings against him and to assist in his defense.” Id. 94 P.3d at 1139 (quoting State v. Salazar, 128 Ariz. 461, 462, 626 P.2d 1093, 1094 (1981)).
Moreover, a trial court has the continuing duty to inquire into a defendant’s competency and to order a Rule 11 examination sua sponte if reasonable grounds exist. State v. Amaya–Ruiz, 800 P.2d 1260, 1270 (Ariz. 1990). But, the court is provided with ample discretion to determine whether reasonable grounds exist. Id. The court may permit an additional Rule 11 examination only if new circumstances create a good faith doubt about the defendant’s competency. Id. It is stated that the court “must always be alert to circumstances suggesting a change” that would render the defendant incompetent. Id. (citing State v. Contreras, 542 P.2d 17, 19–20 (1975)).
The Court in Moody referred Arizona Rule of Criminal Procedure 11.1 which states that “[a] person shall not be tried, convicted, sentenced or punished for a public offense . . . while, as a result of a mental illness, defect, or disability, the person is unable to understand the proceedings against him or her or to assist in his or her own defense.” Ariz. R. Crim. P. 11.1. Rule 11.1 defines “mental illness, defect or disability” as “a psychiatric or neurological disorder that is evidenced by behavioral or emotional symptoms.” Id.
However, the mere presence of a mental illness, defect, or disability “is not grounds for finding a defendant incompetent to stand trial.” Id. “Rather, the test for competency is whether that mental illness or defect renders a criminal defendant unable to understand the proceedings against him or her or to assist in his or her own defense.” Id.
Analysis
Taking the above discussion on what must be proven regarding an ineffective assistance of counsel claim in failing to advise a defendant of his right to a Rule 11 hearing, we find a similar result. Because Rule 32 proceedings restricts the claims that can be made for post-conviction relief, this argument does not fit squarely into one category. Because a Rule 11 hearing is discretionary, and not absolute, it cannot be argued that failure to provide such a hearing denied Defendant rights under Arizona law. Thus, the best fit would be to argue that trial counsel’s failure to properly advise and seek such a hearing was reversible error.
Be that as it may, Banda and the other authority above regarding ineffective assistance of counsel makes this a hard argument to make. The question becomes whether Defendant would have forgone accepting a plea if he would have known a Rule 11 hearing was a possibility. Moreover, given Rule 11.1’s restrictions, as well as the trial court’s observations, and Defendant’s medical history, it is possible that Defendant could be adjudged to have a mental illness. But, it is unlikely that such illness would render him incompetent for trial or unable to assist in his defense. All the information provided, as well as Defendants criminal history, suggests that he has some psychological or psychiatric issues related to bi-polar disorder and depression; but, none of these really call into question whether he is incompetent.
Thus, it is again doubtful whether Defendant can sufficiently prove that failure to request a Rule 11 hearing prejudiced him to the extent his plea should be overturned.
Post-Conviction Relief for Failing to Request a Mitigation hearing
Arizona Rules of Criminal Procedure Rule 26.7(a) states: “When the court has discretion as to the penalty to be imposed, it may on its own initiative, and shall on the request of any party, hold a pre-sentencing hearing at any time prior to sentencing.” “The comment to the above rule states that a request by a party may be made at any time.” State v. Asbury, 701 P.2d 1189, 1193 (Ariz. App. 1984). “This right to a presentence mitigation hearing is an absolute right, and the only limitation as to timeliness is that it must be requested prior to sentencing.” Id.
Rule 26.7(b) states the nature and purpose of a presentence hearing: “At the hearing any party may introduce any reliable, relevant evidence including hearsay, in order to show aggravating or mitigating circumstances, to show why sentence should not be imposed, or to correct or amplify the pre-sentence, diagnostic or mental health reports, the hearing shall be held . . . .” In Asbury, it was held that “basic concepts of fairness, justice and impartiality mandate that the defendant be allowed, at an aggravation and mitigation hearing, to cross-examine the victims in order to bring out mitigating circumstances.” Id. 701 P.2d at 1194.
Moreover, in State v. Talton, 737 P.2d 409 (Ariz. App. 1987), the Court held that:
[I]t does not appear that appellant was given an opportunity to present mitigating evidence on her behalf. Counsel was incorrect in advising the trial court that appellant did not have an absolute right to a mitigation hearing. However, because the court had already denied his motion for a mitigation hearing, it was reasonable for appellant’s counsel not to object to the court going ahead with sentencing.
737 P.2d at 410-11.
Additionally, it has been held that a defendant’s drug addiction is not a mitigating factor courts consider. State v. de la Garza, 675 P.2d 295 (Ariz. App. 1983). However, a defendants acceptance or responsibility and remorse is an appropriate mitigating factor to consider. State v. LeMaster, 669 P.2d 592 (Ariz. App. 1983). But, a defendant’s criminal history and the fact the immediate crime was committed while defendant was on parole is also an appropriate aggravating factor. Id.
Furthermore, Arizona’s Supreme Court has held that a defendant was not denied effective assistance of counsel based on his counsel’s failure to request a presentence mitigation hearing. State v. Smith, 540 P.2d 680 (Ariz. 1975). Also, trial counsels failure to provide an effective mitigation statement was also not found to be ineffective assistance of counsel. State v. McKinney, 503 P.2d 946 (Ariz. 1972).
Analysis
Given the above discussion, it is unlikely that Defendant can successfully argue ineffective assistance of counsel for failing to request a mitigation hearing. However, trial counsel’s failure to advise Defendant properly on his right to such a hearing might be considered proper relief under Rule 32.1(a)—not based on ineffective assistance of counsel, but because Defendant was denied a right he is entitled to under Arizona law. This is a more plausible argument than the others, however, the below conclusion should also be considered.
Conclusion
Given the foregoing, Defendant has possible avenues to file for post-conviction relief. Overall, if the plea is thrown out for some violation, courts will treat it as if the plea had never existed. Thus, there will be no double jeopardy issues.
However, the ramifications of obtaining that relief must also be considered. On one hand, if Defendant is successful in having his sentence overturned and he obtains a mitigation hearing prior to a new sentence being imposed, it is possible that he could present mitigating factors to reduce his term. However, the State is also going to argue aggravating factors such as his criminal history and the fact he committed the immediate crime while on parole. It is impossible to truly hypothesize how that will turn out—whether the sentence will be reduced, whether it will stay the same, or whether it will be enhanced. Per the question posed, if the guilty plea to the immediate charge stands, Defendant, at worst, can only be sentenced up to the maximum penalty—here, 3.75 years.
But, something else to take into consideration is what might happen if the entire plea is thrown out, Defendant rejects a new plea, or if a new plea is not even offered. Per paragraph 4 of Defendant’s plea agreement, in the event the plea is overturned, the original charges will be reinstated in full. Again, one cannot predict what the State will do if the immediate plea is overturned. The State might offer a new plea, they might offer a worse plea, or they might not offer any plea at all. In short, there is indeed a risk associated with attempting to overturn the existing plea to be considered.
