Opinion
No. 2 CA-CR 2018-0193-PR
09-26-2018
THE STATE OF ARIZONA, Respondent, v. SHAWN TURNER, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Gerald R. Grant, Deputy County Attorney, Phoenix Counsel for Respondent Shawn Turner, 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NOT FOR PUBLICATION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). Appeal from the Superior Court in Maricopa County
No. CR2016001918001DT
The Honorable Michael D. Gordon, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL William G. Montgomery, Maricopa County Attorney
By Gerald R. Grant, Deputy County Attorney, Phoenix
Counsel for Respondent Shawn Turner, Kingman
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Judge Eppich and Chief Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Petitioner Shawn Turner seeks review of the trial court's order dismissing his of-right petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We review the court's denial of relief for an abuse of discretion. State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). We find none here.
Factual and Procedural Background
¶2 Pursuant to a plea agreement, Turner was convicted of two counts of forgery, class four felonies, and was sentenced to a three-year prison term to be followed by four years of supervised probation. He was initially indicted on April 22, 2016, for sixteen counts of forgery, stemming from an incident in October 2014, when he was found in possession of forty-six forged Major League Baseball World Series tickets.
¶3 Turner filed a timely notice of post-conviction relief. After appointed counsel notified the trial court she could find no "claims for relief to raise in post-conviction proceedings under . . . Rule 32," Turner filed a pro se petition alleging his trial counsel had been ineffective for failing to challenge the state's decision to charge him with class four felony forgeries, pursuant to A.R.S. § 13-2002, instead of class one misdemeanors for the "fraudulent creation or possession" of "[a]dmission tickets" under A.R.S. § 13-2011. He also alleged counsel had been ineffective in "failing to investigate and file a motion to dismiss" based on a claim of "prejudicial pre-indictment delay."
Pursuant to § 13-2002(A)(2), "A person commits forgery if, with intent to defraud, the person" "[k]nowingly possesses a forged instrument." Section 13-2002(B) further provides, "The possession of five or more forged instruments may give rise to an inference that the instruments are possessed with an intent to defraud." A "[f]orged instrument" is defined as "a written instrument that has been falsely made, completed or altered," A.R.S. § 13-2001(8), and "'[w]ritten instrument' means," in relevant part, "[a]ny paper, document or other instrument that contains written or printed matter or its equivalent," § 13-2001(12).
Section 13-2011 provides that it "is unlawful," and "a class 1 misdemeanor, "for a person, with intent to defraud, to forge, alter or possess any ticket, token or paper that is designed for admission to or for the rendering of services by any sports, amusement, concert or other facility that offers services to the general public."
¶4 With respect to the first claim, Turner argued his plea bargain was "invalid" because it was "induced" by "incorrect advice." According to Turner, he would not have pled guilty had counsel told him "if he lost at trial he would [have] only been [convicted of] a misdemeanor." In his reply to the state's response to his petition, Turner clarified this statement, asserting that, had he gone to trial, he would have been entitled to a lesser-included offense instruction based on § 13-2011. As he had in his petition, he argued "tickets to concerts and basketball [or] baseball games are not the kind of specialized instruments contemplated" by § 13-2002.
In his reply, Turner relied on statutory provisions from other jurisdictions, noting, for example, that Hawaii limits felony classification to forgeries of a "deed, will, codicil, contract, assignment, commercial instrument, or other instrument which does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status." Haw. Rev. Stat. Ann. § 708-852. No such limitation is found in § 13-2002.
¶5 After reviewing the parties' filings, the trial court ordered supplemental briefing from the state and Rule 32 counsel on the question "of whether fraudulent creation or possession of admission tickets under [§ 13-2011] is a lesser-included . . . offense of the forgery alleged in Counts 1-16 of the Indictment under [§ 13-2002(A)(2)]." The court granted Turner leave to file a pro se supplemental brief as well, and further ordered "the scope of the parties' briefing shall be limited" to that specific question, "and no more."
¶6 In its subsequent ruling dismissing Turner's petition, the trial court reasoned that his conduct had violated both the misdemeanor provision in § 13-2011 and the felony forgery provision in § 13-2002. Thus, citing our supreme court's decision in State v. Hankins, 141 Ariz. 217, 221 (1984), it concluded the state acted within its discretion in charging Turner with felonies rather than misdemeanors. See id. ("It is clearly within the sound discretion of the prosecutor to determine whether to file charges and which charges to file."). And, to the extent Turner had argued that he would have risked going to trial had counsel told him that § 13-2011 identified a lesser-included offense of felony forgery, the court correctly explained that "possessing a forged ticke[t] is not a lesser-included offense of forgery," "[b]ecause one may commit forgery (the [alleged] greater offense) without ever committing . . . possessing a forged ticket for sports admission (the [alleged] lesser offense)." See, e.g., State v. Wall, 212 Ariz. 1, ¶ 14 (2006) ("An offense is 'lesser included' when the 'greater offense cannot be committed without necessarily committing the lesser offense.'" (quoting State v. Dugan, 125 Ariz. 194, 195 (1980)).
¶7 Based on this determination, the trial court explained that—contrary to Turner's assertion—his attorney was not ineffective in failing to tell him a jury could have convicted him of a less serious charge, under § 13-2011, had he gone to trial. Cf. id. ¶ 13 (defendant entitled to jury instruction and verdict form for all necessarily included offenses supported by the evidence). And this, in turn, supports the court's conclusion that Turner could "not credibly argue" that the state "would have ever accepted [a misdemeanor-only] resolution," even had his attorney attempted to negotiate such an agreement.
¶8 Finally, the trial court found Turner failed to state a colorable claim that his trial attorney had been ineffective because she did not investigate or file a motion to dismiss based on pre-indictment delay. The court reasoned that Turner had failed to show any basis for his assertion that the prosecutor intentionally delayed the indictment, failed to show how the delay would have furthered the prosecutor's allegedly wrongful purpose, and made no "credible claims of prejudice" resulting from the delay. Concluding that Turner "failed to allege any colorable claim that his counsel was ineffective," the court dismissed his Rule 32 petition. See Ariz. R. Crim. P. 32.6(d)(1).
Discussion
¶9 In his petition for review of the trial court's ruling, Turner argues, as he did below, that the legislature's use of the term forged "written instrument" in § 13-2002 was intended to include written instruments "similar [in] kind" to "a deed, codicil, contract, assignment, commercial instrument, []or credit card," but not a "baseball ticket," because such tickets are not created or used in legal proceedings or financial transactions and are not the kind of specialized instruments "contemplated by Penal law." He thus disputes Rule 32 counsel's "conce[ssion]"on his behalf that both statutes—§ 13-2002 and § 13-2011—"capture his conduct." But, notwithstanding the statutory provisions Turner has cited from other states, the Arizona legislature has broadly defined forgery to encompass "[a]ny paper, document or other instrument that contains written or printed matter or its equivalent," § 13-2001(12), "that has been falsely made, completed or altered," § 13-2001(8). See § 13-2002. As the court determined, §§ 13-2001 and 13-2002 both prohibited Turner's possession of forged baseball tickets, and the court's ruling with respect to prosecutorial discretion was not inconsistent with Arizona law. See, e.g., State v. Embree, 130 Ariz. 64, 66 (App. 1981) (citing United States v. Batchelder, 442 U.S. 114 (1979)), abrogated on other grounds by 1993 Ariz. Sess. Laws, ch. 255, § 30.
¶10 In challenging the trial court's statement that he had "proffered no authority to support the proposition" "that the State [was] required to charge him with misdemeanors," Turner notes that he cited United States v. LaPorta, 46 F.3d 152 (2d Cir. 1994), for the proposition that "[p]rosecution under [the] general provision of [a] statute [is] improper" when "another section of the same statute" provides a penalty for the "specific crime committed." But decisions of federal circuit courts of appeal are not binding on Arizona courts. See Planning Grp. of Scottsdale, L.L.C. v. Lake Mathews Mineral Properties, Ltd., 226 Ariz. 262, ¶ 22 (2011). And Arizona courts have regularly applied the Supreme Court's decision in Batchelder to reject challenges to "overlapping criminal provisions [that] clearly define the conduct prohibited and the punishment authorized." State v. Weiner, 126 Ariz. 454, 456-57 (App. 1980) (quoting Batchelder, 442 U.S. at 123, and noting its rejection of challenges based on statutory ambiguity, implied repeal of older statute, and alleged denial of equal protection and due-process notice); see also, e.g., State v. Ritacca, 169 Ariz. 401, 402 (App. 1991); State v. Johnson, 143 Ariz. 318, 321-22 (App. 1984); State v. Patton, 136 Ariz. 243, 245-46 (App. 1983).
¶11 In addition, Turner's citation to LaPorta did not appear in his petition below, or even in his reply on that petition. Instead, Turner cited the case only in his supplemental pro se brief, which the court had strictly limited to whether § 13-2011 was a lesser-included offense of § 13-2002. Accordingly, this issue was not properly before the court. Cf. State v. Lopez, 223 Ariz. 238, ¶¶ 6-7 (App. 2009) (trial court not required to address claim raised for first time in reply brief).
¶12 Similarly, in his petition for review, Turner asserts he was the victim of impermissible "race based selective prosecution" because he is an African-American who had been prosecuted previously by the same prosecutor assigned to this case. This too was not raised in his petition for post-conviction relief. Nor is it cognizable as a Rule 32 claim. See Ariz. R. Crim. P. 32.1(a)-(h); see also Tollett v. Henderson, 411 U.S. 258, 266 (1973) (pleading defendant "may only attack the voluntary and intelligent character" of his plea and may not raise "independent claims" alleging "deprivation of constitutional rights that occurred prior" to its entry). And, although we do not disagree with the trial court's resolution of Turner's claim of prejudicial delay, we note that his claim of delay, like his claim of selective prosecution, has been waived by his guilty plea. See Tollett, 411 U.S. at 266.
A mere hint of this issue might be found in Turner's pro se supplemental brief—which the trial court had expressly limited to the issue of whether § 13-2011 identified a lesser-included offense of § 13-2002—in which he suggested he would not have been charged under § 13-2002 were he "not a[] minority," and instead "a prominent rich member of Arizona society." Thus, the issue was neither timely raised nor fairly presented to the court below. Even had it been timely, the oblique insinuation would not constitute a colorable "showing that his prosecution was based upon an unjustifiable standard such as race, religion or other arbitrary classification." Johnson, 143 Ariz. at 321-22 (App. 1984) (citing Batchelder and State v. Romero, 130 Ariz. 142, 147 (1981), for proposition "no constitutional infirmity in statutes which provide different penalties for the same conduct where the appellant has made no showing that he was the subject of prosecution based on an unjustifiable selection standard"). Because the issue was never properly before the trial court, we do not further address it on review. See State v. Ramirez, 126 Ariz. 464, 467-68 (App. 1980). --------
¶13 Finally, although Turner asserts on review that his appointed Rule 32 counsel rendered ineffective assistance, this is not a cognizable claim in the instant proceeding. See State v. Petty, 225 Ariz. 369, ¶ 9 (App. 2010) (approved method for challenging performance of of-right Rule 32 counsel is second petition for post-conviction relief); State v. Ramirez, 126 Ariz. 464, 467-68 (App. 1980).
Disposition
¶14 For the foregoing reasons, although we grant review, relief is denied.