Opinion
No. 2 CA-CR 2018-0010-PR
05-23-2018
THE STATE OF ARIZONA, Respondent, v. LUIS RANDULFO PARRADO, Petitioner.
COUNSEL Barton & Storts P.C., Tucson By Brick P. Storts III 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NOT FOR PUBLICATION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 Pima County
No. CR20130021002
The Honorable Scott Rash, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Barton & Storts P.C., Tucson
By Brick P. Storts III
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred.
STARING, Presiding Judge:
¶1 Luis Parrado seeks review of the trial court's ruling denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Parrado has not shown such abuse here.
¶2 After a jury trial, Parrado was convicted of two counts each of kidnapping, armed robbery, aggravated robbery, aggravated assault, and possession of a narcotic drug, and one count each of first-degree burglary, kidnapping a minor under the age of fifteen, aggravated assault of a minor under the age of fifteen, and possession of drug paraphernalia. His convictions stemmed from his participation in a home invasion involving several victims, including a three-year-old child. Parrado was sentenced to concurrent and consecutive prison terms totaling 19.5 years. We affirmed his convictions and sentences on appeal. State v. Parrado, No. 2 CA-CR 2015-0075 (Ariz. App. Sept. 25, 2015) (mem. decision).
¶3 Parrado sought post-conviction relief, asserting counsel had been ineffective in several ways, including by failing to provide him with adequate information to evaluate a plea offer from the state, particularly that the state had DNA and fingerprint evidence linking him to the crimes. The trial court summarily denied relief. On review, we determined the court correctly denied the bulk of Parrado's claims of ineffective assistance, but that he was entitled to an evidentiary hearing on his claim related to the state's plea offer. State v. Parrado, No. 2 CA-CR 2016-0300-PR (Ariz. App. Jan. 25, 2017) (mem. decision). We therefore granted partial relief, remanding the case for an evidentiary hearing. Id. ¶ 12.
¶4 At that hearing, Parrado and counsel testified. Parrado maintained that, although counsel had informed him of the plea offer and potential prison term, she had also told him "she had this case in the bag" and did not discuss the state's DNA or fingerprint evidence. Counsel
testified Parrado was interested only in a plea agreement for the "narcotics charges" and not the remaining offenses. Although she could not recall specifics, she was certain she had discussed the plea offer with Parrado, "would have encouraged him to take a plea agreement that reduced his exposure" in light of the strength of the state's case, and had explained to him that the state "had both DNA and fingerprints" linking him to the crimes. The trial court denied relief, finding Parrado was "not credible," and that counsel had provided him "the information necessary to allow him to make an informed decision whether to accept or reject the plea." This petition for review followed.
¶5 On review, Parrado argues the court erred in rejecting his claim because "the weight of the evidence clearly supported, as same was unrefuted, that [counsel] did not fulfill her obligation" to adequately explain the state's plea offer because she "cannot remember what happened in this case." 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. State v. Donald, 198 Ariz. 406, ¶ 9 (App. 2000). 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. To prove counsel rendered ineffective assistance, Parrado was required to show counsel "either (1) gave erroneous advice or (2) failed to give information necessary to allow [him] to make an informed decision whether to accept the plea." Id. ¶ 16.
¶6 We review de novo whether counsel rendered ineffective assistance. State v. Pandeli, 242 Ariz. 175, ¶ 4 (2017). Our review of the trial court's factual findings after an evidentiary hearing, however, "is limited to a determination of whether those findings are clearly erroneous"; we "view the facts in the light most favorable to sustaining the lower court's ruling, and we must resolve all reasonable inferences against the defendant." State v. Sasak, 178 Ariz. 182, 186 (App. 1993). And Parrado had the burden of proving his factual allegations by a preponderance of the evidence. See Ariz. R. Crim. P. 32.8(c). When "the trial court's ruling is based on substantial evidence, this court will affirm." Sasak, 178 Ariz. at 186. "Evidence is not insubstantial merely because testimony is conflicting or reasonable persons may draw different conclusions from the evidence." Id.; see also State v. Fritz, 157 Ariz. 139, 141 (App. 1988) (trial court sole arbiter of witness credibility in post-conviction proceeding).
¶7 Parrado ignores counsel's testimony that she had advised him to accept the plea and had explained the strength of the state's case to him, including DNA and fingerprint evidence. Although she could not remember some details of her interactions with Parrado, he has cited no authority, and we find none, suggesting a trial court is required to disregard a witness's testimony in these circumstances. In sum, Parrado has identified no basis for us to disturb the trial court's factual finding. He instead requests that we reweigh the evidence; we will not do so. Cf. Fritz, 157 Ariz. at 141 ("The trial court is the sole arbitrator of the credibility of witnesses.").
¶8 Parrado additionally asserts that the trial court erred in concluding he would have received the same aggregate sentence had he pled guilty. The court, however, stated that determination was "not necessary in reaching [its] decision" to reject Parrado's petition. Accordingly, we need not address this argument.
¶9 We grant review but deny relief.