Opinion
2 CA-CR 2023-0245-PR
05-06-2024
The State of Arizona, Respondent, v. Marcus Goldie Webster, Petitioner.
Marcus G. Webster, Safford In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20175298001 The Honorable James E. Marner, Judge REVIEW GRANTED; RELIEF DENIED
Marcus G. Webster, Safford
In Propria Persona
Judge Kelly authored the decision of the Court, in which Judge Sklar and Judge Eckerstrom concurred.
MEMORANDUM DECISION
KELLY, JUDGE:
¶1 Petitioner Marcus Webster seeks review of the superior court's ruling summarily dismissing his petition for post-conviction relief filed pursuant to Rule 33, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Martinez, 226 Ariz. 464, ¶ 6 (App. 2011). Webster has not met his burden of establishing such abuse here.
¶2 Pursuant to a 2018 plea agreement, Webster was convicted of attempted fraudulent scheme and artifice under this case number. The superior court suspended the imposition of sentence and placed Webster on five years' probation, to begin upon his release from prison for a separate conviction.
Pursuant to that same plea agreement, Webster was also convicted of aggravated assault in case number CR20161083/CR20171618. The superior court sentenced him to 4.5 years' imprisonment for that offense.
¶3 In August 2022, Webster admitted to having violated the terms of his probation. Before the disposition hearing, the probation department filed an addendum, which asserted that Webster was "currently pending three new felony charges as well as two new misdemeanor charges." At the disposition hearing later that month, the superior court revoked Webster's probation and sentenced him to a presumptive term of 3.5 years' imprisonment.
¶4 Shortly thereafter, Webster filed a pro se notice of and petition for post-conviction relief, along with several other pleadings over the following months. In March 2023, the superior court issued an order, explaining that it had not received all of Webster's filings and therefore had no notice of the Rule 33 proceeding until late February 2023. The court appointed counsel to represent Webster in the Rule 33 proceeding, ordering that she file a new petition but allowing her to "incorporate by reference" the pro se petition filed by Webster in September 2022.
¶5 In July 2023, Webster, through counsel, filed a petition for post-conviction relief. He argued that trial counsel had been ineffective in failing to object to "the charges and allegations" in the addendum and in failing to ensure that the superior court "did not consider the unproven charges in the sentencing determination." Webster also asserted that trial counsel had been ineffective in "short setting the disposition hearing" and in assuring Webster that the disposition hearing would be continued. He further maintained that without trial counsel's errors, the court would have reinstated him on probation or given him a mitigated sentence.
¶6 In September 2023, the superior court summarily dismissed Webster's petition. The court explained that Webster's claim that trial counsel "did not move to continue the disposition hearing given the pending new charges . . . is soundly rebutted by a review of the record." The court explained that trial counsel had raised the issue, but the court "went forward with the disposition" over counsel's objection. The court further determined that any failure by trial counsel to challenge the pending charges mentioned in the addendum had been "immaterial" because the court knew "the allegations were just that-allegations" and "did not consider these charges in its decision regarding the disposition of this matter." The court detailed the mitigation evidence and argument offered by trial counsel, noting that he had made "a significant effort to that end." This petition for review followed.
¶7 On review, Webster reasserts his claims of ineffective assistance of trial counsel. "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) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." Id. A defendant cannot meet his burden by "mere speculation." State v. Rosario, 195 Ariz. 264, ¶ 23 (App. 1999).
¶8 Webster first contends the superior court erred in applying Strickland. He argues the court "overlooked the fact" that trial counsel had "conducted no investigation into [the] facts of allegations used against [him]." Even assuming that were true, however, Webster was required to establish prejudice in addition to deficient performance. See Strickland, 466 U.S. at 687; Bennett, 213 Ariz. 562, ¶ 21.
As part of this argument, Webster also asserts that trial counsel failed "to rebut the case in aggravation" and relied on "spur-of-[the]-moment" mitigation evidence. Even assuming this argument were sufficiently raised below that it could be considered now, the record belies Webster's assertion. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (appellate court will not address arguments asserted for first time in petition for review). At the disposition hearing, counsel discussed the recent death of Webster's cousin and how that had emotionally affected him, as well as how Webster had started a new business. Counsel ensured that the court had received various letters from Webster's friends and family members. And the court imposed a presumptive-not aggravated- sentence.
¶9 In its ruling, the superior court explained that the allegations in the addendum had no influence on its decision to terminate Webster's probation. Instead, the court-the same judge who had sentenced Webster-explained that Webster's "history of violent criminal behavior" and "poor performance on probation" led it to conclude that "probation was no longer an effective way to resolve the case." Implicit in this determination was that Webster had failed to establish prejudice. We cannot say the court erred in applying Strickland or in rejecting this claim.
¶10 Webster next contends that he was entitled to an evidentiary hearing to determine whether trial counsel was ineffective in failing to request a continuance for the disposition hearing. He reasons that trial counsel's affidavit offered by the state in its response to the petition for post-conviction relief "contradicts" counsel's statements at the disposition hearing. In his sworn affidavit, trial counsel avowed that he had "no notes that [Webster] . . . would not be ready for the disposition hearing" and that he had "no recollection" of Webster telling him that "he was not ready for the disposition hearing and it needed to be continued." Those avowals are not wholly incompatible with trial counsel's statement at the disposition hearing that Webster "would prefer not to go forward with the disposition today."
¶11 In any event, as the superior court pointed out, trial counsel brought to the court's attention Webster's preference to continue the disposition hearing in light of the other pending cases. The court, however, cited a case for the proposition that the disposition could continue and decided to proceed over counsel's objection. Webster has thus failed to show that trial counsel was ineffective in this regard, and the court did not err in rejecting this claim.
To the extent Webster attempts to raise additional claims of ineffective assistance of trial counsel for the first time on review, we decline to address them. See Ramirez, 126 Ariz. at 468.
¶12 Accordingly, we grant review but deny relief.