Opinion
No. 2 CA-CR 2014-0213-PR
08-12-2014
THE STATE OF ARIZONA, Respondent, v. CHARLES HERBERT BROWN JR., Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Gerald R. Grant, Deputy County Attorney, Phoenix Counsel for Respondent Droban & Company, P.C., Anthem By Kerrie M. Droban Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Maricopa County
No. CR2009105743001DT
The Honorable Susanna C. Pineda, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL William G. Montgomery, Maricopa County Attorney
By Gerald R. Grant, Deputy County Attorney, Phoenix
Counsel for Respondent
Droban & Company, P.C., Anthem
By Kerrie M. Droban
Counsel for Petitioner
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Vásquez concurred. ESPINOSA, Judge:
¶1 Charles Brown Jr. petitions this court for review of the trial court's order summarily dismissing his petition for post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P., in which he raised claims of ineffective assistance of trial counsel and newly discovered evidence. Brown has not sustained his burden of establishing the court abused its discretion in denying relief. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007).
¶2 The automobile collision that gave rise to Brown's convictions occurred when Brown drove at an estimated speed of ninety miles per hour in a forty-five-mile-per-hour zone, applied his brakes when he saw the victim's car in his lane of travel as she began to make a left turn, and struck the victim's car at a speed of about sixty miles per hour. The victim who was driving was seriously injured and her three-year-old granddaughter died as a result of injuries sustained in the collision. Brown was charged with second-degree murder and aggravated assault. He was convicted after a jury trial of negligent homicide, a lesser offense of second-degree murder, and aggravated assault and sentenced respectively to an aggravated prison term of eight years, followed by a consecutive, presumptive term of 7.5 years. This court affirmed the convictions on appeal but vacated the sentences and remanded the case for resentencing, reaffirming the same sentences after they were imposed a second time. See State v. Brown, No. 1 CA-CR 10-0429 (memorandum decision filed March 15, 2011); State v. Brown, No. 1 CA-CR 11-0776 (memorandum decision filed July 24, 2012).
¶3 Brown filed a petition for post-conviction relief in which he claimed trial counsel had been ineffective in failing to communicate to him the terms of a plea offer from the state, request a settlement conference and a Donald hearing, and advise him of the potential sentences he was facing and risks of going to trial so that he could "make an informed decision whether to accept or reject the State's plea offer . . . ." In his supporting affidavit, Brown avowed counsel "never articulated the terms of the State's plea offer" and only told Brown "the bargain 'had an "M" in it' and wasn't worth discussing." Brown also raised a claim of newly discovered evidence pursuant to Rule 32.1(e) based on a settlement reached in a civil action filed by the victim. Therein, the surviving parents of the granddaughter had sued the City of Phoenix based on their contention that shrubbery at the intersection had obstructed the victim's view as she turned left onto the street Brown had been traveling.
State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (App. 2000).
¶4 In its response to the petition, the state insisted it had never extended a plea offer to Brown, citing to portions of the record that supported this assertion and attaching an affidavit from the prosecuting attorney to that effect. It argued Brown had failed to raise a colorable claim for relief and the claim was therefore subject to summary denial pursuant to Rule 32.6(c). The state also argued the settlement of the civil lawsuit that was reached after trial in this case was not newly discovered evidence for purposes of the rule because it did not exist at the time of trial. In any event, the state added, the evidence was not material and was not likely to have changed the outcome of the trial.
The state noted the trial court had specified in its minute entry from the August 2009 case management conference that no plea offer was pending. Similarly, the state pointed out that each of the three joint case management plans the parties filed, including the final plan filed in October 2009, specified there was no plea offer.
¶5 In its January 2013 minute entry, the trial court correctly identified the claims Brown had raised, addressed them thoroughly, and resolved them correctly based on the record before it and the applicable law. Briefly, the trial court concluded that, having failed to establish a plea offer was ever made, Brown's claim of ineffective assistance of counsel necessarily failed. The court also found that the victim's settlement agreement reached after Brown's trial did not constitute newly discovered evidence under Rule 32.1(e) and case law defining its scope. See, e.g., State v. Bilke, 162 Ariz. 51, 52-53, 781 P.2d 28, 29-30 (1989). Thus, the court dismissed the petition, denying relief without an evidentiary hearing.
¶6 The trial court correctly disregarded, without conducting an evidentiary hearing, Brown's wholly unsupported assertion that the state had made a plea offer, and addressed issues related to the claim of ineffective assistance of counsel as framed in the petition for review.
¶7 A colorable claim is one that has the "'appearance of validity.'" State v. Adamson, 136 Ariz. 250, 265, 665 P.2d 972, 987 (1983), quoting State v. Richmond, 114 Ariz. 186, 194, 560 P.2d 41, 49 (1976). Brown has not demonstrated that the trial court abused its discretion by finding he failed to raise a colorable claim for relief on either claim. With respect to his claim of ineffective assistance of counsel, Brown focuses most of his argument on general principles of law related to a defendant's constitutional right to effective representation during plea negotiations, the nature and scope of that right, and application of the test articulated in Strickland v. Washington, 466 U.S. 668 (1984), to the plea negotiation context. But whether there existed such a right and its scope were not disputed issue in this proceeding. The trial court acknowledged in its ruling a defendant has the right to effective representation in this context and, citing the Supreme Court's decision in Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399 (2012), agreed with Brown that an attorney's performance could be viewed as deficient if it "causes a defendant to reject a plea offer or lose the opportunity to accept one."
¶8 The dispute here arose with respect to whether there ever had been a plea offer from the state. As noted above, the trial court concluded, inter alia, because the state had not offered Brown a plea agreement, counsel's performance could not have been "ineffective." Brown does not argue, other than in the broadest terms, how the court erred. Although he asserts counsel never adequately explained the plea offer to him, he has not specified the terms of such an agreement, stating simply that he "deserved the opportunity to make an informed decision whether to accept or reject the State's plea offer . . . ." He has not refuted the court's finding that no plea offer was ever made.
We note that the trial court stated in its ruling that the showing of prejudice under the Strickland test required a defendant to state he would have accepted the plea but for counsel's deficient performance and that Brown had not claimed "he would have accepted the offer if advised, [rather] he merely indicates that he would have considered it." But in his affidavit, which was attached to his petition for post-conviction relief, Brown stated, "Had a plea offer been communicated to me, the terms fully explained and the strengths and weaknesses of my case realistically explained, I would have accepted the bargain in lieu of proceeding to trial and receiving consecutive sentences." On review, however, Brown does not point out this discrepancy or assert he would have accepted the purported plea offer; rather, he states he is simply asking for the opportunity to consider a plea offer and make an informed decision about whether to accept it. Thus, any error in this regard has been waived by Brown's own characterization of his claim.
¶9 Brown's bald assertions that there was such an offer did not create an issue of material fact precluding summary dismissal of the petition for post-conviction relief. As the state correctly asserts in its response to Brown's petition for review, "[t]o state a colorable claim, a defendant must do more than contradict what the record plainly shows." See State v. Jenkins, 193 Ariz. 115, ¶ 15, 970 P.2d 947, 952 (App. 1998). Our supreme court explained in State v. Krum, 183 Ariz. 288, 294-95, 903 P.2d 596, 602-03 (1995), that the trial court is entitled to make a threshold assessment of the credibility of assertions in an affidavit based on the nature of those assertions and the record. Thus, a trial court may reject summarily and without an evidentiary hearing claims based on an affidavit that is lacking in a "reliable factual foundation" and "some substantial evidence." Id.
¶10 Based on the record before the trial court, which corroborates the prosecuting attorney's affidavit, the absence of an affidavit from trial counsel, the absence of specific information about the terms of the plea agreement the state purportedly had offered, and the lack of argument in the petition for review with respect to the heart of the trial court's ruling, Brown has not established the court abused its discretion in rejecting the claim of ineffective assistance of trial counsel and dismissing the claim without an evidentiary hearing.
¶11 Nor has Brown established the trial court erred in rejecting summarily his claim of newly discovered evidence. The court's evaluation of this claim was correct. Consequently, we adopt its ruling. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993) (when trial court has correctly ruled on issue "in a fashion that will allow any court in the future to understand the resolution[, n]o useful purpose would be served by this court rehashing" that analysis).
¶12 The petition for review is granted but for the reasons stated, relief is denied.