Opinion
No. 2 CA-CR 2017-0249-PR
11-01-2017
THE STATE OF ARIZONA, Respondent, v. DANIEL WAYNE HERSUM, Petitioner.
COUNSEL Sheila Polk, Yavapai County Attorney By Steven J. Sisneros, Deputy County Attorney, Prescott Counsel for Respondent Vingelli & Company, Law Offices, PLLC, Scottsdale By John N. Vingelli 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NOT FOR PUBLICATION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. 31.24. Petition for Review from the Superior Court in Yavapai County
No. P1300CR20090946
The Honorable Celé Hancock, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Sheila Polk, Yavapai County Attorney
By Steven J. Sisneros, Deputy County Attorney, Prescott
Counsel for Respondent Vingelli & Company, Law Offices, PLLC, Scottsdale
By John N. Vingelli
Counsel for Petitioner
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Chief Judge Eckerstrom concurred. EPPICH, Judge:
¶1 Daniel Hersum seeks review of the trial court's order summarily denying his petition for post-conviction relief. We will not disturb the court's orders unless the court clearly abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7, 353 P.3d 847, 848 (2015). Hersum has not met his burden of demonstrating such abuse here.
¶2 After a jury trial, Hersum was convicted of two counts each of aggravated assault, reckless endangerment, and criminal damage, and three counts of driving under the influence. The trial court sentenced him to concurrent and consecutive prison terms totaling 14.5 years. We affirmed his convictions and sentences on appeal. State v. Hersum, No. 1 CA-CR 13-0188 (Ariz. App. March 11, 2014) (mem. decision).
¶3 Hersum then sought post-conviction relief, arguing his trial counsel had been ineffective in relation to a plea offer by the state. He claimed the state had proposed a plea which would have resulted in a two-year prison term and he would have accepted that offer but for his counsel's failure to advise him what range of sentence he could face if convicted at trial, "explain the benefits" of the offer to him, advise him about the likelihood of success at trial, or urge him to accept the plea. The state responded that Hersum had not been offered a plea calling for a two-year prison term, and instead had rejected two other plea offers after hearings held pursuant to State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (App. 2000).
¶4 In his reply, Hersum tacitly acknowledged he had been advised of the plea offers and the comparative sentencing ranges at the Donald hearings, but asserted he was nonetheless entitled to relief. He stated his claim was rooted in counsel's failure to give him "professional advice" regarding whether to accept or reject the plea offer, including an evaluation of "what his chances would be if he went to trial." The trial court summarily denied relief, concluding the Donald hearings sufficiently advised Hersum of the "ramifications of rejecting the plea offer." This petition for review followed.
¶5 On review, Hersum argues he is entitled to an evidentiary hearing to address his claim that his trial counsel failed to advise him adequately whether to accept or reject the state's plea offers because he did not apprise him of the risks of going to trial. He asserts that counsel falls below prevailing professional norms if he fails to advise a defendant to accept a plea offer when the "defendant has no reasonable prospect of success at trial."
¶6 A defendant is entitled to a hearing only if he presents 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, 368 P.3d 925, 927-28 (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, 146 P.3d 63, 68 (2006); accord State v. Kolmann, 239 Ariz. 157, ¶ 9, 367 P.3d 61, 64 (2016); see also Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In evaluating whether a claim is colorable and whether Hersum 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, 793 P.2d 80, 85 (1990).
¶7 Counsel has a duty to communicate not only the terms of a plea offer, but also its relative merits compared to a defendant's chances at trial. Donald, 198 Ariz. 406, ¶ 9, 10 P.3d at 1198. Accordingly, "a defendant may state a claim for post-conviction relief on the basis that counsel's ineffective assistance led the defendant to make an uninformed decision to reject a plea bargain and proceed to trial." Id. ¶ 14. But, to show prejudice, a defendant must show a reasonable probability he would have accepted the plea offer had he been properly advised. Id. ¶ 20.
¶8 We agree with the trial court insofar as the Donald hearings were sufficient to advise Hersum of the potential aggregate prison term he could face should he go to trial and the potential prison term he could face under the plea offers. And Hersum has offered no argument to the contrary. However, we agree with Hersum that trial counsel must do more than merely ensure the defendant understands the comparative punishment. Instead, as we noted above, counsel must advise the defendant about the possibility of success at trial and the strength of the state's case. Id. ¶ 9. And we must accept as true Hersum's assertion that counsel failed to do so here. See Watton, 164 Ariz. at 328, 793 P.2d at 85.
¶9 However, we disagree with Hersum that he is therefore entitled to an evidentiary hearing. His argument assumes competent counsel would have advised him to accept a plea offer. But he has made no meaningful effort to establish whether that is true in this case. See Donald, 198 Ariz. 406, ¶ 21, 10 P.3d at 1201 (defendant can demonstrate prejudice by showing "risks inherent in proceeding to trial so substantially outweighed the benefits of the plea that proceeding to trial was an unreasonable risk."). Thus, Hersum has not established that competent counsel's advice probably would have caused him to accept a plea offer. Because he has not made a colorable claim of prejudice, the trial court was required to summarily deny his petition. See Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d at 68; see also Ariz. R. Crim. P. 32.6(c).
Hersum's reliance on Boria v. Keane, 99 F.3d 492 (2d Cir. 1996), is thus misplaced. In that case, counsel failed to advise his client that he believed the defendant had no chance of acquittal. Id. at 497. Hersum has not sought to establish that counsel believed or should have believed Hersum probably would be convicted at trial.
Hersum seems to assert the disparity in prison terms between accepting a plea and going to trial is sufficient to establish prejudice. Such disparity is one possible means to show prejudice if a defendant was inadequately informed of the consequences of pleading guilty as opposed to conviction after trial. See Donald, 198 Ariz. 406, ¶ 21, 10 P.3d at 1201. But, as the trial court noted, and Hersum does not dispute, he was aware of the disparity and nonetheless rejected the plea offers.
¶10 We grant review but deny relief.