Opinion
No. 2 CA-CR 2018-0173
09-14-2018
THE STATE OF ARIZONA, Respondent, v. ALEXANDER E. SMITH, Petitioner.
Alexander Eugene Smith, Kingman 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NOT FOR PUBLICATION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 Cochise County
No. S0200CR201600655
The Honorable John F. Kelliher Jr., Judge
REVIEW GRANTED; RELIEF DENIED
Alexander Eugene Smith, Kingman
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred.
ESPINOSA, Judge:
¶1 Petitioner Alexander Smith 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 a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007). Smith has not sustained his burden of establishing such abuse here.
¶2 Pursuant to a plea agreement, Smith was convicted of two counts of attempted sexual conduct with a minor. The trial court sentenced him to a minimum, five-year prison term on one count, to be followed by a lifetime term of probation on the other count.
¶3 Smith thereafter sought post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record and "found no colorable claims for post-conviction relief" to raise in a Rule 32 proceeding. In a pro se supplemental petition, however, Smith argued the trial court had violated his due process rights and "breached the plea agreement" by ordering a flat time sentence, the lifetime probation provision of A.R.S. § 13-902 is unconstitutionally vague, and he received ineffective assistance of counsel. The trial court summarily denied relief, but after the state filed a response indicating that Smith's sentence was subject to earned release credits and not flat time, the court granted relief in part, clarifying the sentence was not to be served as "flat time."
¶4 On review, Smith argues the trial court erred in summarily dismissing his remaining claims. He first contends § 13-902(E) is unconstitutionally vague, quoting State v. Schmidt, 220 Ariz. 563 (2009), and asserting that it allows the court to depart from the standard probationary terms set forth in § 13-902(A) "upon patently vague unconstitutional circumstances '. . . that the court believes [are] appropriate for the ends of justice.'"
¶5 Under § 13-902(E), after a conviction on enumerated offenses, and when probation is available, "probation may continue for a term of not less than the term that is specified in subsection A . . . up to and including life and that the court believes is appropriate for the ends of justice." In Schmidt, our supreme court determined that "[u]se of the catch-all [aggravating circumstance] as the sole factor to increase a defendant's statutory maximum sentence violates due process because it gives the sentencing court virtually unlimited post hoc discretion" in characterizing a defendant's past conduct as the "equivalent of an element of the aggravated offense." 220 Ariz. 563, ¶ 10. Schmidt then distinguished however, "between a trial court's using a catch-all aggravator to increase a defendant's maximum potential sentence versus the court's considering factors embraced by a catch-all in imposing a sentence within a properly determined maximum range." Id. ¶ 11. Subsection E lists specific offenses that authorize the possibility of a probationary term greater than that set forth in subsection A, upon the trial court's considering the "ends of justice" to determine the appropriate term. § 13-902. Thus, the application of § 13-902(E) is equivalent to a court's considering catch-all factors to determine a sentence within the maximum range—the situation we distinguished in Schmidt. 220 Ariz. 563, ¶ 10. We therefore find no error in the court's order of lifetime probation.
¶6 Smith also argues he received ineffective assistance in that trial counsel failed "to detect the enhanced sentence violated the Eighth Amendment." To prevail on this claim, Smith was required to demonstrate both that counsel's performance was deficient and that he was thereby prejudiced. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Nash, 143 Ariz. 392, 397 (1985). "To establish deficient performance, a defendant must show that his counsel's assistance was not reasonable under prevailing professional norms, 'considering all the circumstances.'" State v. Kolmann, 239 Ariz. 157, ¶ 9 (2016) (quoting Hinton v. Alabama, 571 U.S. 263, 273 (2014)). "To establish prejudice, a defendant must 'show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. (quoting Hinton, 571 U.S. at 275).
¶7 Citing State v. Bartlett, Smith argues his sentence violates the Eight Amendment because it was enhanced. 171 Ariz. 302 (1992), disapproved by State v. DePiano, 187 Ariz. 27 (1996). But, unlike the twenty-three-year-old defendant in Bartlett, who received a forty-year sentence for convictions based on "voluntary sexual intercourse" with nearly fifteen-year-old victims, twenty-eight-year-old Smith received a five-year prison
term and lifetime probation for his convictions based on such conduct with a fourteen-year-old victim. See also State v. Davis, 206 Ariz. 377 (2003) (fifty-two year prison sentence for twenty-year-old defendant grossly disproportionate). He has provided no evidence and cited no authority to support his argument that counsel's failure to assert a claim of cruel and unusual punishment as to such a sentence fell below prevailing professional norms. See State v. Herrera, 183 Ariz. 642, 647 (App. 1995). The trial court therefore properly denied relief on his claim. See State v. Bennett, 213 Ariz. 562, ¶ 21 (2006) ("Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim.").
¶8 Although we grant the petition for review, relief is denied.