Opinion
No. 2 CA-CR 2018-0009-PR
04-25-2018
THE STATE OF ARIZONA, Respondent, v. RICHARD ALBERT MEDINA, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Jeffrey R. Duvendack, Deputy County Attorney, Phoenix Counsel for Respondent Richard A. Medina, Florence In Propria Persona
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NOT FOR PUBLICATION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 Maricopa County
No. CR2012125059001DT
The Honorable Peter C. Reinstein, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL William G. Montgomery, Maricopa County Attorney
By Jeffrey R. Duvendack, Deputy County Attorney, Phoenix
Counsel for Respondent Richard A. Medina, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 Richard Medina seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., and the subsequent denial of his motion for rehearing. We will not disturb those orders unless the court clearly abused its discretion. State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Medina has not met his burden of demonstrating such abuse here.
We apply the current version of Rule 32, Ariz. R. Crim. P., as doing so will neither "be infeasible [n]or work an injustice." Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017).
Although Medina asserts he is petitioning from the trial court's denial of his motion for rehearing, it appears he is also challenging the denial of his amended Rule 32 petition.
¶2 Pursuant to a plea agreement, Medina was convicted of second-degree burglary. The trial court sentenced him to a stipulated prison term of 8.5 years to be followed by a three-year term of probation in another matter. Medina filed a timely notice of post-conviction relief and, after appointed counsel notified the court he could find no colorable claims to raise under Rule 32, Medina filed a pro se Rule 32 petition. In it, he alleged that his guilty plea was rendered involuntary by the court's erroneous statement during an October 2014 continuance hearing that Medina faced "a life sentence" if he proceeded to trial and was convicted. He also asserted trial and Rule 32 counsel were ineffective—trial counsel by failing to correct the court's statement about a life sentence, and Rule 32 counsel by failing to order and review the transcript of the hearing at which that statement was made. In the "[a]ffidavit" attached to his Rule 32 petition, Medina stated, "If it was not for the Judge's statement [about a life sentence] I would have taken my case to trial," and claimed counsel and the judge had misled him.
The trial court imposed probation in CR2013-429125 at the same time as the sentence in this matter (CR2012-125059). Although Medina initially asked in his Rule 32 petition that we "overturn his guilty pleas" in both the 2012 and 2013 matters, he also stated he "does not contest his conviction or sentence" in the 2013 matter and "wishes to honor that conviction." Because the record suggests the Rule 32 proceeding relates only to the 2012 case, we limit our review to that matter.
In January 2017, the trial court granted Medina's motion to supplement his Rule 32 petition with an exhibit consisting of the portion of the transcript of the October 2014 hearing in which the court referred to "a life sentence." The court treated Medina's previously filed Rule 32 petition and the transcript as an "[a]mended [p]etition," and "re-started the briefing process in order to give all parties the benefit of [the October 2014] transcript."
¶3 At the October 2014 hearing, which took place in Medina's presence just before his trial was set to begin, Medina learned that his co-defendant had provided a "free-talk" to the state and that the trial court was granting the co-defendant's motion to sever. The state then offered Medina a plea agreement with a stipulated 8.5-year sentence. After the court asked if the defendants had been given a Donald "advisement" regarding possible sentencing ranges, the state explained the sentencing ranges to both defendants on the record, noting that Medina could receive a maximum term of twenty-five years if convicted at trial. Defense counsel confirmed that he, too, had advised Medina of his sentencing exposure, and the court then stated, "It seems like [a guilty plea] is beneficial to both sides, the defendants receive a big benefit because if they are convicted [at trial] their liability is really what could amount to, at least in [Medina's] situation . . . a life sentence." Medina accepted the state's plea offer two days later and the court imposed the stipulated 8.5-year sentence.
State v. Donald, 198 Ariz. 406 (App. 2000).
Medina was almost fifty-five years old at the time of the hearing.
¶4 In its ruling summarily denying the Rule 32 petition, the trial court concluded Medina had failed to state a colorable claim, noting it had considered the petition, the response and the reply, and had reviewed "the copies of the relevant court transcripts in this matter." On review, Medina repeats some of the claims he raised below, raises some new claims, maintains the court failed to review his "amended petition," and asserts he is entitled to an evidentiary hearing. A defendant is entitled to an evidentiary 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 (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); see also Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶5 Medina claims his guilty plea was involuntary because the trial court misled him to believe he could receive a life sentence if he were convicted at trial. He also argues trial counsel was ineffective for failing to correct this perceived error. We disagree. Both the state and Medina's attorney advised him of the sentencing range he faced at trial. And, the court's comment that a twenty-five-year sentence "could amount to" a life sentence is understandable when viewed in the context of Medina's age of fifty-five. Moreover, the court made this comment after Medina had been advised twice of the sentencing range he faced at trial, which notably did not include a life sentence. Concomitantly, trial counsel was not ineffective for failing to clarify the court's comment or to restate the sentencing range.
To the extent Medina also suggests trial counsel should have done something different because Medina's competency previously had been called into question, not only has he failed to explain what counsel should have done in this regard, but the record shows that in 2012, pursuant to the parties' joint stipulation, the trial court found Medina competent to understand the proceedings and to assist his attorney with his defense.
¶6 Medina also argues trial counsel was ineffective for failing to request a Donald hearing to ensure he understood the plea offer. Medina did not raise this claim in his amended Rule 32 petition, but instead mentioned Donald generally in his reply to the state's response to his petition, and specifically raised counsel's failure to have requested a Donald hearing for the first time in his motion for rehearing. Therefore, the trial court was not required to address this argument, and we decline to address it for the first time on review. See State v. Lopez, 223 Ariz. 238, ¶¶ 6-7 (App. 2009) (trial court not required to address claim raised for first time in reply brief).
¶7 Medina also asserts Rule 32 counsel was ineffective by failing to file a brief pursuant to Anders v. California, 386 U.S. 738 (1967), requesting that the trial court conduct an independent review of his case. We reject this claim for several reasons. First, Medina did not raise it in his petition below, and we thus need not address it on review. See Lopez, 223 Ariz. 238, ¶¶ 6-7. Second, although a pleading defendant is constitutionally entitled to effective assistance of counsel in his first, of-right Rule 32 proceeding, Medina may not challenge his current Rule 32 counsel's conduct in this proceeding; rather, he may do so in in a timely filed second Rule 32 proceeding. See Ariz. R. Crim. P. 32.1 (defining of-right proceeding and providing "[a]fter the court's final order or mandate" in of-right proceeding, "defendant also may file an of-right notice challenging the effectiveness of Rule 32 counsel in the first of-right proceeding"); see also State v. Petty, 225 Ariz. 369, ¶ 9 (App. 2010); cf. Bennett, 213 Ariz. 562, ¶ 16 (nonpleading defendant's claim of ineffective assistance of appellate counsel not waived when appeal and first Rule 32 proceeding filed by same attorney). Finally, we note that this court recently concluded a superior court is not required "to conduct Anders review in a Rule 32 of-right petition." State v. Chavez, 243 Ariz. 313, ¶ 18 (App. 2017).
We find unpersuasive Medina's assertion that he "adequately gave notice" of this claim in his reply to the state's response to his petition below and raised it "more explicitly" in his motion for rehearing.
¶8 To the extent Medina also asserts the trial court did not consider his amended petition, the record belies his claim. As previously noted, in its ruling denying post-conviction relief the court stated it had considered not only the relevant pleadings, but had "reviewed the copies of the relevant court transcripts," which necessarily included the October 2014 transcript, which was the source of Medina's motion to supplement his Rule 32 petition. Notably, when the court granted Medina's motion to supplement, it expressly acknowledged that the relevant portion of the October 2014 transcript had become part of the amended petition before the court. Moreover, Rule 32.6(d)(1) permits the summary disposition of a petition. And although we encourage trial courts to clearly identify the bases for their decisions, see Brown v. Superior Court, 137 Ariz. 327, 331 n.5 (1983), the court's failure to have done so here does not entitle Medina to relief. See State v. Williams, 220 Ariz. 331, ¶ 9 (App. 2008) (trial court presumed to know and follow law). Finally, we reject Medina's unsupported assertion that the Rule 32 judge was biased because he was the trial judge. See Ariz. R. Crim. P. 32.4(f) (if possible, and unless sentencing judge's "testimony will be relevant," presiding judge shall assign Rule 32 proceeding to sentencing judge).
¶9 Because Medina has failed to establish the trial court abused its discretion in summarily denying his amended petition for post-conviction relief and his motion for rehearing, we grant review but we deny relief.