Opinion
2 CA-CR 2013-0310-PR
10-25-2013
THE STATE OF ARIZONA, Respondent, v. BENJAMIN LEE SHORT, Petitioner.
Sheila Sullivan Polk, Yavapai County Attorney By Kevin D. Schiff Attorneys for Respondent Nicole T. Farnum Attorney for Petitioner
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF YAVAPAI COUNTY
Cause No. P1300CR201100749
Honorable Celé Hancock, Judge
REVIEW GRANTED; RELIEF DENIED
Sheila Sullivan Polk, Yavapai County Attorney
By Kevin D. Schiff
Prescott
Attorneys for Respondent
Nicole T. Farnum Phoenix
Attorney for Petitioner
VÁSQUEZ, Presiding Judge.
¶1 Benjamin Short petitions this court for review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We find no such abuse here.
¶2 In 2012, pursuant to a plea agreement, Short was convicted of aggravated assault of a peace officer, possession of a dangerous drug, and two counts of criminal impersonation. The plea agreement set forth the sentencing range for the offenses, and specifically provided the mitigated, minimum, presumptive, maximum, and aggravated sentences for each type of felony to which Short was pleading guilty. The agreement also provided that Short would receive a sentence of "not less than 3.0 years." The agreement further provided that Short "waives and gives up any and all motions, defenses, objections, or requests which he[] . . . could assert . . . to the Court's . . . imposition of a sentence . . . consistent with this Plea Agreement," and that the trial court "is bound only by the limits set forth in paragraph 1 [sentencing ranges] and the applicable statutes." The court sentenced Short to consecutive, maximum sentences totaling nine years.
¶3 At the change-of-plea hearing, the parties acknowledged they had stipulated to a minimum sentence of three years, as they had in a previous plea offer. The trial court asked Short, "So you understand I'm not bound by [the three-year sentence from the first plea offer] at this time," and Short responded, "Yeah." Short also acknowledged he had read and placed his initials on each page of the plea agreement, discussed the agreement with his attorney, and understood it. Additionally, when Short's attorney explained that Short was concerned whether the court was going to "stack" the sentences, the court responded:
The state withdrew a previous plea offer in which the trial court had indicated it would "consider" imposing a three-year sentence. The state thereafter proposed the instant plea offer, which included an additional charge of criminal impersonation not included in the first offer.
I don't know . . . the answer to that, Mr. Short.
The criminal impersonation case is one that I don't have any knowledge of . . . we're going to get a presentence report in this case now, and I don't blame you for being confused and so I don't know anything about that.
I can tell you I believe my sentencing options are completely open at this time. That's why I placed that on the record . . . .
. . . .
The fact that there is a new charge on here, class six designated felony, causes me some concern that there is another charge out there and I have not yet considered the fact that there was another charge out there.
Do I think that these will all be aggravated and stacked? No, I don't. But beyond that, I can't really tell you exactly what it is that I plan to do.
I want to see the presentence report. I want to know more about this . . . new count and what exactly the circumstances were surrounding that. That's the best that I can do for you now.
This is a completely different plea agreement than the one that was offered prior to now.
¶4 When the trial court asked Short if anyone had promised him "anything aside from what's written in the document [plea agreement] itself," he responded, "No." Before the factual basis was provided and the plea accepted, the court reviewed the presumptive, minimum, and maximum sentences for class four and six felonies; although the court did not verbally provide the range for aggravated sentences for those classes of felonies, that information was set forth in the written plea agreement, which Short acknowledged he had read and understood.
¶5 At sentencing, the trial court told Short, "You have been given opportunity after opportunity after opportunity and you have done nothing except continue to live a life of crime." The court took note of Short's tattoo that states "fuck cops," and further noted that the presentence report showed he had not accepted responsibility for assaulting a police officer. The author of the report stated that Short had not demonstrated any remorse, and that he was at a "high risk" to reoffend. The court also noted Short had committed the underlying offenses a mere three months after he had been released from a prison sentence on a different offense. Noting it felt obligated to keep the "community safe," the court found the following aggravating factors: "[p]rior felony convictions, prior violent felony convictions with weapons involved . . . [and] the defendant is a danger to the community." The court then imposed, without objection, consecutive, maximum sentences totaling nine years.
¶6 Short then filed a petition for post-conviction relief, arguing his guilty plea was involuntary because he would not have pled guilty absent the trial court's promise that his sentences would not all be aggravated and stacked, and asserting that, because he had "relied on information related to his sentence that was outside of the plea agreement," his plea "was not in accordance with Rule 17.1 and Rule 17.3[, Ariz. R. Crim. P.]." Short attached an affidavit to his petition attesting that he had "decided to plead guilty" because the judge said his "sentences would not all be aggravated and stacked" and that he would not have pled guilty if the judge had not so stated.
¶7 In its ruling dismissing Short's Rule 32 petition, the trial court found:
[Short's] sole claim is that the Court essentially promised him that he would not receive aggravated, stacked sentences.
"Do I think that these will be all aggravated and stacked? No I don't. But beyond that, I can't really tell you exactly what it is that I plan to do."
[Short's] argument fails. [Short] was not sentenced to aggravated stacked terms. He was sentenced to maximum stacked terms. Had [Short] been sentenced to aggravated stacked terms, his sentence would have been 11.5 years in the Department of Corrections. The judgment and sentencing indicates that he was sentenced to maximum stacked terms, resulting in a sentence of incarceration . . . of 9 years.
¶8 On review, Short argues that because "he relied on the court's promise that it would not impose aggravated and stacked sentences . . . [but it] did in fact impose consecutive, aggravated sentences," his guilty plea was rendered involuntary and the trial court thus abused its discretion by dismissing his petition. It appears that Short maintains he is entitled to withdraw his guilty plea and reinstate his plea of not guilty, or at the very least, to an evidentiary hearing. However, Short argues for the first time on review that by having imposed a sentence beyond the presumptive term, the court necessarily imposed aggravated sentences, asserting that any sentence that "exceed[s] the statutory presumptive based on aggravating factors that the court found" is tantamount to an aggravated sentence. Not surprisingly, because Short failed to assert this argument to support his claim below, neither did he cite the case law he now cites on review to support it. Accordingly, to the extent Short urges us to find the court ruled incorrectly based on this specific argument, which he never presented to the court below, we neither consider nor address it. Cf. Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review to contain issues "decided by the trial court . . . which the defendant wishes to present to the appellate court for review"); State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980) (reviewing court will not consider for first time on review issues not presented to, or ruled on, by trial court).
Short did not request an evidentiary hearing in his Rule 32 petition below, although he did so in his reply to the state's response thereto. Cf. State v. Lopez, 223 Ariz. 238, ¶¶ 6-7, 221 P.3d 1052, 1054 (App. 2009) (trial court not required to consider claim raised for first time in reply brief and by extension, in reply to response to Rule 32 petition).
¶9 However, we nonetheless address Short's primary argument, which he did raise below, that based on the trial court's "promise" not to impose stacked, aggravated sentences, his plea was rendered involuntary. See Ariz. R. Crim. P. 17.3 (before accepting guilty plea, court shall address defendant personally in open court to determine, inter alia, that plea is "voluntary and not the result of . . . promises (other than a plea agreement)"). To comply with Rule 17.2(b), Ariz. R. Crim. P., a trial court must inform the defendant of "'[t]he nature and range of possible sentence for the offense to which the plea is offered,'" and must determine the defendant understands these provisions. State v. Villegas, 230 Ariz. 191, ¶ 5, 281 P.3d 1059, 1060 (App. 2012), quoting Ariz. R. Crim. P. 17.2(b). "When a court complies with these mandates, 'we can say that under constitutional standards the plea has been intelligently made.'" Id. ¶ 5, quoting State v. Ellis, 117 Ariz. 329, 333, 572 P.2d 791, 795 (1977). And, for a guilty plea to be valid, it must be knowing and voluntary. Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969); see also Ariz. R. Crim. P. 17.1(b). But "[a] plea will be found involuntary only where a defendant lacks information of 'true importance in the decision-making process.'" State v. Pac, 165 Ariz. 294, 295-96, 798 P.2d 1303, 1304-05 (1990), quoting State v. Crowder, 155 Ariz. 477, 482, 747 P.2d 1176, 1181 (1987).
¶10 We cannot say the trial court abused its discretion by dismissing Short's petition. The plea agreement specifically stated the length of the "maximum" term for each crime and the "aggravated" term for each crime. The court imposed the "maximum" terms as defined by the plea agreement, not the "aggravated" terms. So, in context, even if the court's statement could be interpreted as a promise, the court did not breach it. Furthermore, as previously noted, when the court asked Short if anyone had promised him "anything aside from what's written in the document itself," he responded, "No." And Short told the court he had reviewed and understood the written plea agreement, which clearly set forth the applicable sentencing range, including the distinction between maximum and aggravated sentences. See A.R.S. § 13-702. Additionally, the agreement provided that by pleading guilty, Short was waiving any objection to the "imposition of a sentence . . . consistent with this Plea Agreement." And, Short does not appear to assert, nor would the record show, the sentences imposed were anything but consistent with the written plea agreement.
¶11 In addition, at the change-of-plea hearing, the trial court specifically told Short it would not commit to a specific sentence until it had reviewed the presentence report, a document the court apparently relied upon at sentencing. Moreover, in challenging the state's recommendation that the court impose aggravated, consecutive terms on all offenses, Short did not argue the court was precluded from doing so based on a prior "promise" made by the court. For all of these reasons, we find no abuse of discretion in the court's apparent finding that Short's guilty plea was knowing, voluntary and intelligent.
¶12 Because we cannot say the trial court abused its discretion by dismissing Short's petition for post-conviction relief without conducting an evidentiary hearing, we grant review but deny relief.
______________________________
GARYE L. VÁSQUEZ, Presiding Judge
CONCURRING: _____________________________
JOSEPH W. HOWARD, Chief Judge
______________________________
J. WILLIAM BRAMMER, JR., Judge
A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Administrative Order No. 2012-101 filed December 12, 2012.
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