Opinion
No. 2 CA-CR 2018-0106-PR
05-10-2018
THE STATE OF ARIZONA, Respondent, v. DANNY WISE, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Daniel Strange, Deputy County Attorney, Phoenix Counsel for Respondent Danny Wise, San Luis 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NOT FOR PUBLICATION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 Maricopa County
No. CR2009173845001DT
The Honorable David B. Gass, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL William G. Montgomery, Maricopa County Attorney
By Daniel Strange, Deputy County Attorney, Phoenix
Counsel for Respondent Danny Wise, San Luis
In Propria Persona
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred. BREARCLIFFE, Judge:
¶1 Danny Wise seeks review of the trial court's order denying his petition for post-conviction relief and motion for rehearing filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb those orders unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Wise has not shown such abuse here.
¶2 After a jury trial, Wise was convicted of eight counts of fraudulent scheme and artifice and twenty-two counts of theft stemming from his misappropriation of funds from clients of his accounting practice. The trial court sentenced him to concurrent and consecutive prison terms totaling thirty-five years. We affirmed his convictions and sentences on appeal. State v. Wise, No. 1 CA-CR 13-0888 (Ariz. App. Nov. 3, 2015) (mem. decision).
¶3 Wise sought post-conviction relief, arguing his counsel had been ineffective by giving him "bad advice" causing him to reject a favorable plea offer and by failing to seek dismissal of the indictment, "conduct any investigation," request an instruction pursuant to State v. Willits, 96 Ariz. 184 (1964), or move to preclude Wise's settlement agreement with the "accountancy board." The trial court conducted an evidentiary hearing to address Wise's claim regarding purported plea offers. The court rejected that claim, determining that, although there were plea negotiations, no plea had been offered and, in any event, Wise's claim that he would have accepted a plea was not credible.
¶4 The court also summarily rejected Wise's other claims of ineffective assistance, noting that counsel: (1) could reasonably have opted not to seek dismissal of the indictment "based on the weakness of the claim"; (2) "were prepared, understood the case, and knew the evidence"; (3) need not have sought a Willits instruction because it was not warranted; and (4) could have decided not to seek preclusion of the settlement agreement "for numerous reasons," including that it was consistent with the defense theory of the case. The court denied Wise's subsequent motion for rehearing, and this petition for review followed.
¶5 On review, Wise first argues the trial court erred by rejecting his claim related to purported plea offers by the state. An attorney's representation may be found constitutionally deficient if he fails to timely communicate a formal plea offer, Missouri v. Frye, 566 U.S. 134, 147 (2012); provides erroneous plea advice; or, fails to provide "information necessary to allow [his client] to make an informed decision whether to accept the plea," State v. Donald, 198 Ariz. 406, ¶ 16 (App. 2000). To establish prejudice in this context, a defendant must show a "reasonable probability that," absent his attorney's deficient conduct, he would have accepted the plea offer. Id. ¶ 20.
¶6 Wise insists the state made oral plea offers, citing testimony by a prosecutor. But the prosecutor testified the parties had merely engaged in plea negotiations, and that no formal plea offers had been made. She stated that, although she suggested a "generic" plea calling for Wise to plead guilty to four class two felonies with a prison term of five to 8.5 years "if restitution was paid in full," with a greater sentence if it was not, that discussion did not constitute "a formal plea offer" and, in any event, Wise was not interested. "The constitutional principles underlying Donald come into play only when a concrete plea offer has been made by the state." State v. Jackson, 209 Ariz. 13, ¶ 11 (App. 2004). Although Wise argues Jackson is distinguishable because the purported plea offer in this case called for "a specific, known term" of incarceration, we cannot agree that the description of a potential prison term creates a concrete plea offer. For example, Wise has not identified what offenses he would have admitted committing, whether the plea agreement would have permitted consecutive sentences, or any other of a myriad of terms that would have been relevant to the state's decision to offer a plea and his decision whether to accept it.
The trial court found Wise would not have admitted guilt to any offense. Wise insists on review that he would have simply pled no contest, but he has cited no evidence the state would have entered an agreement allowing a no-contest plea. See Ariz. R. Crim. P. 17.1(c).
¶7 The trial court's minute entry of a May 2013 hearing noted the state gave Wise a "Donald Advisory" and that Wise had rejected the "plea offer." But Wise has not provided a transcript of that hearing and, in light of the trial court's factual findings following the evidentiary hearing, this passing reference to Donald does not demonstrate the state offered Wise a formal plea as contemplated by Donald and Jackson. In the absence of a plea offer by the state, there was nothing for Wise to accept and he necessarily cannot prevail on a claim under Donald. And, in any event, Wise ignores the trial court's finding he would not have accepted a plea that included more than one year of prison time.
Even if we agreed Wise's counsel had been ineffective, Wise has not identified an available remedy. In the absence of a concrete plea offer, the remedy contemplated by Donald—reinstatement of the offer—is impossible because "the trial court would be required to speculate, in a factual vacuum, about the terms of any such agreement." Jackson, 209 Ariz. 13, ¶ 9; see also Donald, 198 Ariz. 406, ¶ 40.
Because Wise has established neither that a concrete plea offer was made or that he would have accepted it, we need not address his claims that counsel was ineffective with regard to plea negotiations.
¶8 Wise also asserts the trial court erred in summarily rejecting his other claims of ineffective assistance. To be entitled to an evidentiary hearing, Wise must present a colorable claim, that is, "he has alleged facts which, if true, would probably have changed the verdict or sentence." State v. Amaral, 239 Ariz. 217, ¶¶ 10-11 (2016). And, "[t]o state a colorable claim of ineffective assistance of counsel," Wise "must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced [him]." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006); accord State v. Kolmann, 239 Ariz. 157, ¶ 9 (2016); see also Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984). To show prejudice, he must demonstrate that there is a "reasonable probability"—that is, "a probability sufficient to undermine confidence in the outcome" of the trial—that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
¶9 Two of Wise's claims of ineffective assistance—that counsel should have sought dismissal and an instruction pursuant to Willits—rest on the state's alleged loss of evidence. Even assuming, without deciding, that Wise has made a colorable claim that evidence was lost, he has not demonstrated in his petition for review that it had any exculpatory value such that he was prejudiced by its loss. See State v. Youngblood, 173 Ariz. 502, 507 (1993) (state's bad-faith destruction of evidence does not violate due process absent showing of prejudice); State v. Glissendorf, 235 Ariz. 147, ¶¶ 8-9 (2014) (Willits instruction merited only if evidence tends to exonerate defendant). Consequently, he has not demonstrated that dismissal or a Willits instruction would have been appropriate.
To the extent Wise seeks to incorporate by reference the assertions made in his petition below, that procedure is not permitted by our rules and we limit our review to the contentions raised and developed in Wise's petition for review. See Ariz. R. Crim. P. 32.9(c)(5)(A) (petition for review "must not incorporate any document by reference"); State v. Hess, 231 Ariz. 80, ¶ 13 (App. 2012).
¶10 Nor has Wise established the trial court erred in rejecting his argument that counsel had been ineffective by inadequately preparing for trial. Even were counsel's preparation insufficient, Wise has not demonstrated any likelihood of a different verdict. And, Wise has not developed any argument in his petition for review that a motion to preclude his settlement agreement would have been granted, much less that its preclusion would have altered the verdict.
¶11 We grant review but deny relief.