Opinion
No. 2 CA-CR 2017-0361-PR
02-13-2018
THE STATE OF ARIZONA, Respondent, v. DANIEL JOSEPH FELTON, Petitioner.
COUNSEL Jon R. Smith, Yuma County Attorney By Charles Platt, Deputy County Attorney, Yuma Counsel for Respondent Sharmila Roy, Laveen 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Yuma County
No. S1400CR200700620
The Honorable Lawrence C. Kenworthy, Judge
REVIEW GRANTED; RELIEF GRANTED IN PART AND DENIED IN PART
COUNSEL Jon R. Smith, Yuma County Attorney
By Charles Platt, Deputy County Attorney, Yuma
Counsel for Respondent Sharmila Roy, Laveen
Counsel for Petitioner
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 Daniel Felton seeks review of the trial court's order denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). We grant review and, for the reasons stated, grant relief in part and deny relief in part.
¶2 After a jury trial, Felton was convicted of child molestation, sexual conduct with a minor, and continuous sexual abuse of a minor, all stemming from his sexual abuse of his girlfriend's daughter. The trial court sentenced him to consecutive prison terms totaling thirty-eight years. We affirmed his convictions and sentences on appeal. State v. Felton, Nos. 1 CA-CR 11-0097, 1 CA-CR 11-0495 (Ariz. App. May 31, 2012) (consol. mem. decision).
¶3 Felton sought post-conviction relief, arguing his trial counsel had been ineffective. With regards to plea offers from the state, he asserted counsel had not advised him of an offer or, with regards to a second offer, "discuss[ed] the chances of prevailing at trial." He also claimed counsel should have challenged the child molestation charge as duplicitous. Felton further contended counsel had been deficient in determining which witnesses to interview or call at trial, examining witnesses, gathering evidence, preparing Felton to testify, and failing to object to purported prosecutorial misconduct. Last, Felton requested the court order the victim's grandmother and brother be deposed, and he be provided a copy of an interview of the victim and her medical records.
The state provided a copy of the interview in response to Felton's request.
¶4 The trial court summarily denied relief. It determined Felton "had the opportunity to accept the plea offer" at a hearing held pursuant to State v. Donald, 198 Ariz. 406 (App. 2000), and chose instead to reject it. As to Felton's various claims of ineffective assistance in preparation for and at trial, the court determined he had not demonstrated prejudice. Finally, the court concluded Felton had "failed to demonstrate the necessary good cause to obtain an order that additional discovery be provided by the State." This petition for review followed.
¶5 On review, Felton reasserts the bulk of his claims and argues he is entitled to an evidentiary hearing. He also contends he is entitled to depose the victim's grandmother and brother. We address each issue in turn.
¶6 Felton is entitled to a hearing only if he has presented a colorable claim for relief, that is, "he has alleged facts which, if true, would probably have changed the verdict or sentence." State v. Amaral, 239 Ariz. 217, ¶¶ 10-11 (2016). "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, 213 Ariz. 562, ¶ 21 (2006); accord State v. Kolmann, 239 Ariz. 157, ¶ 9 (2016); see also Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In evaluating whether a claim is colorable and whether Felton is thus entitled to an evidentiary hearing, we must assume the facts he has alleged are true. See State v. Watton, 164 Ariz. 323, 328 (1990).
¶7 There is "[a] strong presumption" that counsel "provided effective assistance," State v. Febles, 210 Ariz. 589, ¶ 20 (App. 2005), which Felton must overcome by providing evidence that counsel's conduct did not comport with prevailing professional norms, see State v. Herrera, 183 Ariz. 642, 647 (App. 1995). Moreover, tactical or strategic decisions rest with counsel, State v. Lee, 142 Ariz. 210, 215 (1984), and we will presume "that the challenged action was sound trial strategy under the circumstances," State v. Stone, 151 Ariz. 455, 461 (App. 1986). Thus, "[d]isagreements as to trial strategy or errors in trial [tactics] will not support a claim of ineffective assistance of counsel as long as the challenged conduct could have some reasoned basis." State v. Meeker, 143 Ariz. 256, 260 (1984).
¶8 We first address Felton's claim that his attorney was ineffective with respect to plea offers by the state. An attorney's representation may be found constitutionally deficient if he fails to timely communicate a formal plea offer to his client, Missouri v. Frye, 566 U.S. 134, 147 (2012); provides his client with erroneous plea advice; or, fails to provide "information necessary to allow [him] to make an informed decision whether to accept the plea," Donald, 198 Ariz. 406, ¶ 16. To establish prejudice in this context, a defendant must show a reasonable probability that, absent his attorney's deficient conduct, he would have accepted the plea offer. Id. ¶ 20.
¶9 Treating the factual assertions Felton made in his affidavit as true, as we must, see Watton, 164 Ariz. at 328, he has made a colorable claim that counsel was ineffective with respect to the plea offers. He asserts that he was not informed of a plea offer and, in any event, that counsel did not advise him of the purpose of the Donald hearing concerning another offer. He further alleges that when he asked about that plea, counsel had told him "not to worry and that [he] was not going to jail" because "the dates were all wrong and that [the victim] did not see the scar [on his penis]." Felton additionally claims that, had he understood "the prosecution can change the dates when the crimes are supposed to have happened, and that there was any possibility that the jury would believe that [the victim] could not see the scar . . . [he] would have accepted the offer in a heartbeat."
¶10 The Donald hearing is consistent with Felton's affidavit. Felton was informed about the potential sentences he could face under the plea and if convicted at trial. But, although the parties briefly discussed the strength of the case against him, the discussion was extremely superficial, and the court did not confirm with Felton whether he wanted to accept or reject the plea. Felton's trial counsel, in an affidavit provided by the state, avowed he had recommended Felton accept the plea but that Felton had "adamantly opposed entering any plea of guilty." He also stated he "never tell[s] clients they will win a case, no matter how lopsided it would appear." (Emphasis omitted.) An evidentiary hearing is necessary to resolve the conflict between the avowals of Felton and trial counsel. See Ariz. R. Crim. P. 32.6(d)(2), 32.8(a).
The state asserted there was "a reasonable likelihood of conviction," "given the victim and her recollection and her ability to convey what happened to her." Felton's counsel noted the victim was "not in the area where she alleged that the crimes occurred during the period of time when she said they occurred" but that the indictment had since been "modified to correct some timelines in there." Counsel concluded, "at least with one act [there is] some level of a defense."
¶11 Felton also claims trial counsel should have challenged the allegation of child molestation as duplicitous and in violation of A.R.S. § 13-1417(D). "A duplicitous charge exists '[w]hen the text of an indictment refers only to one criminal act, but multiple alleged criminal acts are introduced to prove the charge.'" State v. Paredes-Solano, 223 Ariz. 284, ¶ 4 (App. 2009), quoting State v. Klokic, 219 Ariz. 241, ¶ 12 (App. 2008). Section 13-1417(D) prohibits the state from charging "[a]ny other felony sexual offense involving the victim" during the same period described for a charge of continuous sexual abuse.
¶12 Felton's argument, as we understand it, is that the child molestation allegation was objectionable because the victim's testimony could have been interpreted as placing the relevant act in 2003—during the same timeframe as the state's allegation of continuous sexual abuse—instead of 2004, as alleged in the indictment. But the indictment charged Felton with having committed child molestation outside the timeframe in which he was alleged to have committed continuous sexual abuse. And Felton has not cited any evidence of multiple instances of child molestation in 2004 that could have formed the basis of the jury's verdict. He therefore has not shown duplicity or a violation of § 13-1417(D), irrespective of any ambiguity in the victim's testimony. Consequently, he has not established counsel should have raised such an argument.
¶13 Felton also argues the trial court erred in concluding he had not demonstrated prejudice from counsel's alleged failure to adequately prepare for and conduct his trial. He contends the court applied the wrong standard and failed to consider "the cumulative effect of counsel's errors." (Emphasis omitted.) Even were we to agree with Felton's assessment, however, his claims of ineffective assistance nonetheless fail.
¶14 In his petition below, Felton claimed counsel should have interviewed and called at trial two potential witnesses—his sister and the victim's grandmother. He included an affidavit from his sister in which she claimed the victim had told her on several occasions that she "hated" Felton and planned to "get back" at him. But this testimony was at least as likely to harm Felton as help him, since an obvious motive for the victim's alleged hatred (which Felton's sister leaves unexplained in her affidavit) could be his ongoing sexual abuse. Even had counsel interviewed Felton's sister and decided to call her at trial, Felton has not established any likelihood her testimony would have aided his defense.
¶15 Felton asserted counsel should have sought to interview the victim's grandmother to confirm whether the victim had told her about the abuse. The victim's testimony on this point was inconsistent—she first stated she had not told her grandmother, but later said she had done so. Felton reasoned that, if the victim's grandmother "testified that [the victim] had never told her about the alleged acts . . . the [victim's] credibility . . . would have suffered." But we see little value in such evidence in light of the victim's already inconsistent testimony.
¶16 Felton also complains about counsel's decisions during trial, including his impeachment of the victim and his decision whether to object to a purportedly improper comment by the state. But the decision whether to object to improper argument, which witnesses to call, and how to conduct examination are all, presumptively, tactical decisions that cannot support a claim of ineffective assistance. See Lee, 142 Ariz. at 215; State v. Webb, 164 Ariz. 348, 353 (App. 1990); Stone, 151 Ariz. at 461. Felton has made no effort to establish that those decisions were not tactical. He instead complains that trial counsel, in the affidavit provided by the state, "did not articulate any strategy" for those decisions. But it is Felton's burden to show that counsel's decisions could have had no reasoned basis. See Stone, 151 Ariz. at 461; see also Meeker, 143 Ariz. at 260. The trial court did not err in summarily rejecting these claims of ineffective assistance.
To the extent Felton reasserts his claim that counsel did not prepare him to testify, he has not developed any argument on review that he was prejudiced thereby. Thus, we do not address this claim. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (insufficient argument waives claim on review).
¶17 Felton also asserts the trial court erred by failing to address his request to depose the victim's brother. He asks that we "give the defense leave" to conduct those depositions. Our supreme court has observed that "trial judges have inherent authority to grant discovery requests in [post-conviction] proceedings upon a showing of good cause." Canion v. Cole, 210 Ariz. 598, ¶ 10 (2005). The trial court at least implicitly rejected that request, concluding he was not entitled to discovery "provided by the State." We agree that Felton has not demonstrated good cause.
Felton argues in passing, that he is entitled to depose the victim's grandmother. Felton has made no effort to establish good cause to do so and accordingly has waived this argument on review. See Stefanovich, 232 Ariz. 154, ¶ 16.
Felton asserts he is not permitted to directly contact either potential witness because they are victims as defined in the Victim's Bill of Rights. That does not appear to be the case. See Ariz. Const. art. II, § 2.1(C); A.R.S. §§ 13-4401(19), 13-4433(B). In any event, he has not asserted that he requested an interview "through the prosecutor's office" as permitted by § 13-4433(B) nor taken any other steps to contact these potential witnesses. This fact additionally supports the trial court's conclusion that Felton has not shown good cause to compel a deposition.
¶18 Felton seeks to interview the victim's brother about his claim that, post-trial, the victim had told him she had fabricated the charges against Felton. But this issue was already raised and rejected in a motion to vacate the judgment in which Felton asserted the brother's statements constituted newly discovered evidence. We upheld that ruling on appeal. Felton, Nos. 1 CA-CR 11-0097 & 11-0495, ¶ 7. Felton has not explained what new information he hopes to obtain by interviewing the victim's brother that would support a claim of newly discovered evidence independent of the claim already rejected. See State v. Little, 87 Ariz. 295, 304 (1960) (doctrine of res judicata generally applies in criminal cases). Instead, he seems to suggest that trial counsel was ineffective in raising the claim in the motion to vacate—an argument he has not developed in any meaningful way. Thus, Felton has not demonstrated good cause.
¶19 We grant review and partial relief. We remand the case to the trial court to conduct an evidentiary hearing on Felton's claims of ineffective assistance related to plea offers by the state. We otherwise deny relief.