Opinion
2 CA-CR 2022-0141-PR
11-03-2022
The State of Arizona, Respondent, v. Lamya Lynn Bencheqroun, Petitioner.
Matthew J. Smith, Mohave County Attorney By Robert R. Moon, Deputy County Attorney, Kingman Counsel for Respondent The Brewer Law Office, Show Low By Benjamin M. Brewer Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Mohave County No. CR201800237 The Honorable Douglas R. Camacho, Judge Pro Tempore
Matthew J. Smith, Mohave County Attorney By Robert R. Moon, Deputy County Attorney, Kingman Counsel for Respondent
The Brewer Law Office, Show Low By Benjamin M. Brewer Counsel for Petitioner
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Eppich and Vice Chief Judge Staring concurred.
MEMORANDUM DECISION
BREARCLIFFE, JUDGE
¶1 Lamya Bencheqroun seeks review of the trial court's order denying her 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. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Bencheqroun has not met her burden of establishing such abuse here.
¶2 Bencheqroun pleaded guilty to first-degree murder and kidnapping. For murder, the trial court sentenced her to life in prison without the possibility of release for twenty-five years. For kidnapping, the court imposed an aggravated, eighteen-year prison term. Bencheqroun sought post-conviction relief, raising several claims. She first argued her plea colloquy had been insufficient and she was thus entitled to withdraw from her plea. Specifically, she asserted the court had not advised her regarding: (1) her right to a jury trial, as opposed to merely a trial; (2) the presumption of innocence; (3) the right to remain silent and that the jury would be instructed not to hold the exercise of that right against her; and (4) the right to present evidence in her defense. She also asserted she was not advised her rights "regarding the finding of aggravating circumstances," particularly the right to a jury trial. Bencheqroun additionally claimed the court had "mistakenly believed it could not consider the sentences received by the co-defendants," causing her prejudice. She also alleged that her counsel had been ineffective in failing to advise her she would not face the death penalty if convicted after a jury trial and in failing to alert the court to deficiencies in the plea colloquy.
¶3 After an evidentiary hearing, the trial court denied relief. It acknowledged that, during the plea colloquy, it had not specifically advised Bencheqroun she was waiving her right to a jury trial and to the presumption of innocence. It concluded, however, that the record showed Bencheqroun nonetheless knew she was waiving those rights by pleading guilty. The court observed, for example, that it had repeatedly referred to "the jury" when describing her rights and, in any event, Bencheqroun had admitted during the evidentiary hearing that she knew she had a right to a jury trial and that she was innocent until proven guilty.
¶4 The trial court further concluded Bencheqroun had been sufficiently informed that she was waiving her right to present evidence in her defense and her right to remain silent. The court noted it had told Bencheqroun that she would have been able to call witnesses at trial and, although she could choose to testify, she had the right to remain silent. And the court concluded Bencheqroun had not demonstrated it was required to specifically inform her it would instruct the jury it could not hold her silence against her and, in any event, her claim that she would have rejected the plea had she been so advised was not credible.
¶5 The trial court acknowledged it had not separately advised Bencheqroun of any rights related to the finding of aggravating factors. But the court determined the colloquy was nonetheless sufficient because Bencheqroun had generally been advised of her right to a jury trial and had "not presented any credible evidence to suggest that [she] had any reason to believe that the rights explained by the Court and [her counsel] regarding the guilt or innocence portion of the jury trial were any different from those in the aggravating circumstances portion of the same jury trial." The court additionally found, in any event, that trial counsel had separately advised Bencheqroun of her right to a jury trial on aggravating factors.
¶6 Because the trial court decided Bencheqroun's plea had been voluntary, knowing, and intelligent, it determined she had not demonstrated any prejudice resulting from counsel's purported deficiency in failing to address these issues during the plea colloquy. And it rejected her claim that counsel had not ensured she was aware the state was not seeking the death penalty, concluding that the record showed she had been so advised by both the court and counsel and that her claims to the contrary were not credible. Last, the court rejected her sentencing claim, concluding it correctly "distinguished] [Bencheqroun]'s circumstances from the co-defendant's circumstances." This petition for review followed.
Bencheqroun does not raise this claim on review. We therefore do not address it. See State v. Rodriguez, 227 Ariz. 58, n.4 (App. 2010) (declining to address argument not raised in petition for review).
¶7 On review, Bencheqroun first repeats her claim that the plea colloquy was deficient. Before a trial court may accept a defendant's guilty plea, the court "must address the defendant personally, inform the defendant . . ., and determine that the defendant understands" the charges and sentencing range and, relevant here, "the constitutional rights that the defendant foregoes by pleading guilty or no contest." Ariz. R. Crim. P. 17.2(a)(3). The constitutional rights of which the court must inform the defendant include the right to a jury trial, including a trial on aggravating factors, the right to confront witnesses, and the privilege against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 242-43 (1969); State v. Riley, 141 Ariz. 15, 19 (App. 1984); see also State v. Brown, 212 Ariz. 225, ¶ 26 (2006) (defendant must waive right to jury trial on aggravating factors unless plea "necessarily establishes" them).
¶8 As we noted above, the trial court acknowledged the plea colloquy had been deficient in part. But it found Bencheqroun was nonetheless aware she was waiving the rights in question-the right to a jury trial both on the charged offenses and any aggravating factors, the right to be presumed innocent, the right to silence, and the right to present evidence. Bencheqroun, however, largely fails to address this determination. Instead, her argument is that, because those rights were not sufficiently addressed during the plea colloquy, she is entitled to relief regardless.
¶9 That is not the law. Instead, when an oral advisement is lacking, a court must look to the entire record to determine if the defendant's waiver was knowing, voluntary, and intelligent. See State v. Tiznado, 112 Ariz. 156, 157 (1975). That is precisely what the trial court did here. Nor has Bencheqroun established the court was required to advise her it would instruct the jury that it could not hold her silence against her or addressed its finding she would have accepted the plea in any event.
Bencheqroun correctly notes that the only evidence supporting the trial court's finding that counsel had adequately advised Bencheqroun regarding her right to a jury trial on aggravating factors was counsel's testimony that she "always" gave such advisements. Counsel stated, "[T]hat's part of the standard conversation I have every time I go over a plea document with a client," even if the specific advisement is not contained in the written agreement. Bencheqroun seems to suggest this evidence is insufficient to support the court's finding, an argument she neither develops nor supports. Accordingly, we do not address it further. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (insufficient argument waives claim). We do additionally note, however, that her signed plea agreement states that the court may find aggravating factors and "is not bound by the rules of evidence in making such findings."
Accordingly, she has failed to show the court abused its discretion in rejecting these claims. See Roseberry, 237 Ariz. 507, ¶ 7.
¶10 We agree with the trial court that Bencheqroun also cannot prevail on her claims of ineffective assistance of counsel. Because Bencheqroun knowingly, voluntarily, and intelligently waived the right to a jury trial, the presumption of innocence, the right to remain silent, and the right to present evidence, she cannot show resulting prejudice even if counsel should have raised defects in the plea colloquy. See State v. Salazar, 146 Ariz. 540, 541 (1985) (to establish ineffective assistance defendant must show deficient performance and prejudice; court need not address both requirements if one not met). And Bencheqroun has provided no basis to disturb the court's determination that she had been advised the state was not seeking the death penalty. The court expressly found that not only was Bencheqroun adequately advised of that fact in open court, trial counsel had also informed her the state was not seeking the death penalty. Although Bencheqroun claimed otherwise in her testimony, the court found that testimony incredible. We will not reweigh the evidence on review. See State v. Fritz, 157 Ariz. 139, 141 (App. 1988) (trial court sole arbiter of credibility of witnesses in Rule 32 evidentiary hearing).
¶11 We grant review but deny relief.