Opinion
2 CA-CR 2013-0103-PR
05-13-2013
THE STATE OF ARIZONA, Respondent, v. DARIUS AGBOGHIDI, Petitioner.
William G. Montgomery, Maricopa County Attorney By E. Catherine Leisch Attorneys for Respondent James J. Haas, Maricopa County Public Defender By Terry Reid Attorneys 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Not for Publication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 MARICOPA COUNTY
Cause No. CR2004135085002DT
Honorable Michael D. Gordon, Judge
REVIEW GRANTED; RELIEF DENIED
William G. Montgomery, Maricopa County Attorney
By E. Catherine Leisch
Phoenix
Attorneys for Respondent
James J. Haas, Maricopa County Public Defender
By Terry Reid
Phoenix
Attorneys for Petitioner
KELLY, Judge. ¶1 Darius Agboghidi petitions this court for review of the trial court's order denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., after an evidentiary hearing. 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). For the following reasons, we grant review but deny relief. ¶2 Agboghidi pled guilty to first-degree murder and burglary and was sentenced to life in prison without release eligibility for twenty-five years for murder, with a concurrent prison term for his burglary conviction. He sought post-conviction relief, arguing his plea was not knowing, voluntary, and intelligent because the trial court mistakenly had informed him that he was eligible for parole, although parole had been eliminated for felony offenses committed after 1994, like Agboghidi's offenses. He further asserted that his trial counsel had been ineffective because he improperly advised Agboghidi he was eligible for parole. Agboghidi maintains he would not have pled guilty had he understood that parole would not be available to him. ¶3 The trial court summarily denied relief, concluding Agboghidi had not demonstrated a meaningful difference between being eligible for parole and being eligible for other forms of early release. On review, this court granted relief. State v. Agboghidi, No. 1 CA-CR 09-0717 PRPC (decision order filed Mar. 15, 2011). We determined that Agboghidi was ineligible for parole and that there was "a material difference between life with the possibility of 'parole' after 25 years and life with the possibility of 'early release' after 25 years" for a defendant sentenced pursuant to A.R.S. § 13-751(A). We noted that, although Agboghidi "may be" eligible for commutation, "that process is significantly different from parole approval," and concluded he therefore had raised colorable claims that his plea had been involuntary and that his counsel had been ineffective. We remanded the case for an evidentiary hearing "to provide Agboghidi the opportunity to establish his claims." ¶4 Following that evidentiary hearing, the trial court denied relief. The court first noted it was "indisputable" that Agboghidi had been "misadvised about [his eligibility for] parole." The court further found, however, that Agboghidi would have entered a guilty plea even if he had been properly advised because his "core motivation" in pleading guilty "was to obtain an opportunity for release." The court compared the process and likely outcomes of seeking parole and seeking commutation, and concluded, despite the differences in standards and process, "both avenues provided [Agboghidi] with only a slim opportunity for release." The court evaluated Agboghidi's testimony and determined that it was "difficult to believe . . . he would have rejected the [plea] offer" had he known his release would be limited to commutation, when release on parole "was similarly remote . . . under the facts" of the case. It found "unconvincing" Agboghidi's testimony that he would have rejected the plea had he understood the distinction between parole and commutation. Accordingly, the court rejected Agboghidi's claim that his plea had been involuntary. It also rejected his claim of ineffective assistance of counsel, noting Agboghidi had not presented any evidence that "defense counsel's advice fell . . . below the standard of care" and that, in any event, Agboghidi could not demonstrate prejudice because he would have accepted the plea offer irrespective of counsel's advice. ¶5 On review, Agboghidi argues the trial court erred in concluding "that parole and commutation were similar sentencing consequences" and in finding he would have accepted the plea agreement even had he understood the distinction between commutation and parole. Thus, he reasons, the court erred in rejecting his claim that his plea agreement was involuntary and in determining he could not demonstrate prejudice resulting from counsel's purportedly ineffective assistance. We conclude the court thoroughly and correctly analyzed and rejected Agboghidi's claims; there is no need to repeat that analysis here in its entirety, and we therefore adopt the court's minute entry. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). ¶6 We write further only to observe that Agboghidi's primary argument on review misapprehends the trial court's ruling. The court did not conclude, as Agboghidi suggests, that commutation and parole "offered a prisoner the same opportunity for release." Nor did it find those procedures "essentially identical." Instead, the court determined that, in light of the facts of Agboghidi's offenses, his opportunity for release under either procedure was similarly remote. And, although Agboghidi additionally claims the court erred in finding he would have accepted the plea agreement in any event, that argument essentially asks us to reweigh the evidence and reevaluate Agboghidi's credibility. We will not do so. See State v. Hoskins, 199 Ariz. 127, ¶ 97, 14 P.3d 997, 1019 (2000) (trial court in best position to evaluate witness credibility and weigh evidence); State v. Sasak, 178 Ariz. 182, 186, 871 P.2d 729, 733 (App. 1993) (appellate court does not reweigh evidence on review). ¶7 For the reasons stated, although review is granted, relief is denied.
______________________
VIRGINIA C. KELLY, Judge
CONCURRING: ______________________
GARYE L. VÁSQUEZ, Presiding Judge
______________________
PHILIP G. ESPINOSA, Judge