Opinion
No. 1 CA-CR 17-0433 PRPC
05-01-2018
STATE OF ARIZONA, Respondent, v. MARK ANTHONY BARQUERA, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By E. Catherine Leisch Counsel for Respondent Mark Anthony Barquera, Buckeye Petitioner
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Petition for Review from the Superior Court in Maricopa County
No. CR2014-151299-001
The Honorable Erin Otis, Judge
REVIEW GRANTED AND RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By E. Catherine Leisch
Counsel for Respondent
Mark Anthony Barquera, Buckeye
Petitioner
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in which Judge Kenton D. Jones and Judge James B. Morse Jr. joined.
HOWE, Judge:
¶1 Mark Anthony Barquera petitions this Court for review of the dismissal of his petition for post-conviction relief of-right ("PCR") filed pursuant to the Arizona Rules of Criminal Procedure. We have considered the petition for review and for the reasons stated, grant review but deny relief.
¶2 In 2014, Barquera was charged with one count of second-degree murder and one count of possession or use of dangerous drugs. He pled no contest to one count of manslaughter, and as part of that plea agreement, stipulated to a prison term between 7-21 years. In accordance with the plea agreement, the trial court sentenced Barquera to an aggravated term of 18 years' imprisonment with 573 days' presentence incarceration credit. Barquera timely commenced PCR proceedings. After reviewing the record, appointed counsel notified the court that he had found no colorable claims for relief. Barquera then filed a pro per PCR, which the trial court summarily dismissed. This petition for review followed.
¶3 In his petition for review, Barquera argues that (1) the sentencing judge erroneously used "lack of remorse" as an aggravating factor, (2) trial counsel was ineffective when he failed to object to the sentencing judge's use of "lack of remorse" as an aggravating factor, and (3) the sentencing judge violated her duty to recuse herself from the case. Absent an abuse of discretion or error of law, this Court will not disturb a trial court's ruling on a petition for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19 (2012). The petitioner bears the burden to show that the trial court abused its discretion. See State v. Poblete, 227 Ariz. 537, 538 ¶ 1 (App. 2011).
¶4 Before sentencing, defense counsel filed a mitigation report asserting that Barquera's "remorse[] for his conduct" warranted a reduced sentence. At the sentencing hearing, the prosecutor challenged this claimed basis for mitigation, arguing that Barquera had never "show[n] an ounce of remorse" throughout the proceedings. By way of illustration, the prosecutor invited the sentencing judge to recall Barquera's behavior during the settlement conference, which the prosecutor described as "extremely disrespectful to the [victim's] family[.]" After the prosecutor concluded her statements, the detective who had led the investigation in the case asked to address the court, stating that in his experience of handling over 200 homicide cases, Barquera's "absolute[]" lack of remorse was extremely "rare."
¶5 In response, defense counsel argued that Barquera felt "great remorse for what he did," and explained that Barquera's remorse was not evident when he spoke with the investigating detective because he had been "heavily under the influence" and not "in his right state of mind[.]" Barquera then addressed the court directly, expressing "regret and sadness" to the victim's family. After that brief apology, Barquera told the court that he planned to turn the "negative energy" of this "tragic event" into something positive by using his "great influence within the world of martial arts" to serve the broader community.
¶6 After hearing from the parties, the sentencing judge explained that she would assign weight to each of the mitigating and aggravating factors. Having "presided over the settlement conference," the judge noted that she was quite "familiar with . . . th[e] horrific incident," and then addressed defense counsel's mitigation claim that Barquera had remorse for his actions. Although agreeing that Barquera "ha[d] spared the victim's family from having to go through a trial process," the judge doubted that Barquera felt remorse, "recall[ing] some of the things that [he had] said during the settlement conference[.]" In addition, the judge explained that from her vantage point in the courtroom, she had seen Barquera's reaction to the victim's family members' statements at sentencing and had perceived that he displayed no remorse in response to hearing their anguish.
¶7 At that point, defense counsel interjected, informing the court that he had instructed Barquera to "not be reactive" so that he would be composed when he addressed the court. Acknowledging that an attempt to maintain composure was reasonable, the judge nonetheless found that Barquera appeared indifferent, not "someone who . . . genuinely felt bad about what happened." The judge further explained that Barquera's brief apology in his prepared statements to the court was not persuasive because his remarks overall sounded like "a marketing speech or business plan." The judge then found as mitigating factors Barquera's "tremendous" support from family and community members. The judge found as aggravating factors Barquera's prior felony conviction, his numerous contacts with law enforcement, his failure to render aid to the victim, and the emotional harm he caused to the victim's family. Given the particularly "heinous" and "senseless" nature of the crime, the sentencing judge found that the aggravating factors outweighed the mitigating factors, and imposed an aggravated sentence accordingly.
¶8 Contrary to Barquera's argument, the record clearly reflects that the sentencing judge did not use lack of remorse as an aggravating
factor; rather, she rejected defense counsel's contention that Barquera's remorse was a mitigating factor. Therefore, Barquera's claims that the sentencing judge committed fundamental error by finding lack of remorse as an aggravating factor and that trial counsel was ineffective by failing to object thereto are without merit.
¶9 Turning to Barquera's remaining claim that the judge should have recused herself, the record reflects that Barquera neither asked the judge to recuse herself nor moved for a change of judge for cause. Therefore, we review this claim for fundamental error only. See State v. Granados, 235 Ariz. 321, 326 ¶ 13 (App. 2014) ("If a defendant fails to object on the basis of a trial judge's bias below by filing a motion and affidavit pursuant to Rule 10.1, he forfeits review for all but fundamental, prejudicial error.").
¶10 Because we presume a judge is impartial, the party seeking recusal bears the burden of proving bias or prejudice by a preponderance of the evidence. State v. Carver, 160 Ariz. 167, 172 (1989). "Bias or prejudice means a hostile feeling, ill will, undue friendship, or favoritism towards one of the litigants." Id. Judicial bias or prejudice ordinarily must "arise from an extrajudicial source and not from what the judge has done in his [or her] participation in the case." State v. Emanuel, 159 Ariz. 464, 469 (App. 1989). Absent a showing of bias or prejudice, a judge's prior dealings or familiarity with a defendant or his circumstances does not require recusal. See State v. Thompson, 150 Ariz. 554, 557 (App. 1986).
¶11 Applying these principles here, Barquera has failed to offer any evidence that the sentencing judge was biased. Nonetheless, even if the judge improperly considered Barquera's conduct during the settlement conference, Barquera has failed to demonstrate that he sustained any prejudice as a result. In evaluating defense counsel's proposed mitigating factor of remorse, the judge not only recalled her observations at the settlement conference, but also heard the prosecutor and detective's avowals that Barquera had displayed no remorse, saw Barquera's reaction to the victim's family members as they discussed their loss, and evaluated the tone of his statements to the court. Expressly considering each of these factors, the judge then found that Barquera's demeanor was wholly inconsistent with a person who sincerely regretted his wrongdoing. Because no bias is evident on this record, Barquera has failed to show that the sentencing judge erred, much less that she committed fundamental error, by failing to recuse herself after the settlement discussions.
¶12 Accordingly, we grant review but deny relief.