Opinion
No. 2 CA-CR 2017-0159-PR
09-14-2017
THE STATE OF ARIZONA, Respondent, v. AMOS BEVERETT, Petitioner.
Amos Beverett, 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NOT FOR PUBLICATION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. 31.24. Petition for Review from the Superior Court in Pima County
No. CR20091782001
The Honorable Danelle B. Liwski, Judge
REVIEW GRANTED; RELIEF DENIED
Amos Beverett, San Luis
In Propria Persona
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Howard concurred. EPPICH, Judge:
The Hon. Joseph W. Howard, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 Amos Beverett seeks review of the trial court's order dismissing his notice of post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P., and his motion for reconsideration of that dismissal. We grant review but, for the following reasons, we deny relief.
Factual and Procedural Background
¶2 After a 2010 jury trial, Beverett was convicted of three counts of sale or transfer of a narcotic drug and sentenced to concurrent, presumptive, 15.75-year prison terms. This court affirmed his convictions and sentences on appeal. State v. Beverett, No. 2 CA-CR 2010-0397, ¶ 17 (Ariz. App. Dec. 14, 2011) (mem. decision). On three previous occasions, we reviewed the trial court's denials of post-conviction relief, and we declined to grant relief from those rulings. State v. Beverett, No. 2 CA-CR 2016-0360-PR, ¶ 5 (Ariz. App. Jan. 10, 2017) (mem. decision); State v. Beverett, No. 2 CA-CR 2013-0245-PR, ¶ 6 (Ariz. App. Oct. 22, 2013) (mem. decision); State v. Beverett, No. 2 CA-CR 2012-0419-PR, ¶ 5 (Ariz. App. Feb. 21, 2013) (mem. decision).
¶3 In his most recent notice of post-conviction relief, Beverett alleged ineffective assistance of trial counsel based on an "Irreconcilable Conflict of Interest." Relying on United States v. Cronic, 466 U.S. 648 (1984), and Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (2002), he maintained his claim was of "sufficient constitutional magnitude" that it was not subject to preclusion by waiver under Rule 32.2(a)(3). Smith, 202 Ariz. 446, ¶ 10, 46 P.3d at 1071, quoting Ariz. R. Crim. P. 32.2(a)(3) cmt. In addition, he suggested his claim could be raised in an untimely proceeding because it is based on Rule 32.1(e), which affords relief when "[n]ewly discovered material facts probably exist and such facts probably would have changed the verdict or sentence." In support of his claim of newly discovered evidence, he stated he was unaware of the legal concepts of constitutional structural error, irreconcilable conflict of interest, or "this, 'Sufficient Constitutional Magnitude' issue" until January 2017. The trial court dismissed Beverett's notice, finding he failed to satisfy the requirements in Rule 32.2(b) for claims asserted in a successive or untimely petition.
¶4 Beverett filed a motion for reconsideration of that ruling, and, before the trial court issued its decision on his motion, he filed an "Addendum to his Notice of Post-Conviction Relief." In that document, he alleged another claim of newly discovered evidence, stating he had just received a copy of August 2010 correspondence from his attorney enclosing a pretrial plea agreement offered by the state. The offer attached to Beverett's addendum provided for a plea of guilty to one of the counts charged in exchange for a prison term in the range of three to five years, with no probation available.
¶5 According to Beverett, the 2010 correspondence had been sent to the correct street address, but the wrong apartment number. He maintained he had never before seen the plea agreement and emphasized that it was not "made part of the record," arguing his attorney's failure to request a Donald hearing "establishes an irreconcilable conflict of interest" on the part of trial counsel. The trial court denied the motion for reconsideration, stating Beverett's notice had been properly dismissed, and it declined to vacate that dismissal based on Beverett's addendum, finding that filing did not raise an issue of material fact that would entitle him to relief. This petition for review followed.
State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (App. 2000). Trial courts may conduct a pretrial Donald hearing to ensure a defendant is aware of a plea offer and the consequences of conviction after trial, and also to provide a record relevant to a later claim of ineffective assistance of counsel. See Missouri v. Frye, 566 U.S. 134, 145-46 (2012).
Beverett's petition for review of the trial court's February 28 ruling was filed on April 25, 2017, well beyond the thirty-day time limit in Rule 32.9(c). Upon this court's order to show why his petition should not be dismissed, Beverett cited medical circumstances, and we ordered the record transmitted for review. On May 30, Beverett filed an addendum to his motion to proceed on review, stating his intention to "bring[] to the court" the trial court's May 10 order denying his motion for reconsideration and arguing that "[c]ourt abused its discretion as evinced by [his] notice, attachment, transcripts, affidavit(s) and addendum(s)." We are aware of no rule that would permit Beverett to file an "Addendum to his Notice of Post-Conviction Relief" after the notice had been dismissed and a motion for reconsideration was pending in the trial court. But the trial court has nonetheless addressed the issue raised in the addendum and, in the interest of judicial economy, we will review that portion of the court's orders. Cf. Ritchie v. Krasner, 221 Ariz. 288, ¶ 63, 211 P.3d 1272, 1289 (App. 2009) (addressing merits of waived issue, in part to serve "the interests of judicial economy").
Discussion
¶6 On review, Beverett relies primarily on his filings below, maintaining, without much elaboration, that they establish the trial court "made an error of law and abused [its] discretion" in dismissing his notice of post-conviction relief and addendum. We review a trial court's summary dismissal of a Rule 32 proceeding for an abuse of discretion. State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006) (dismissal of petition for lack of colorable claim); State v. Harden, 228 Ariz. 131, ¶ 3, 263 P.3d 680, 681 (App. 2011) (dismissal of notice pursuant to Rule 32.2(b)). And we will affirm a trial court's decision if it is legally correct for any reason. State v. Roseberry, 237 Ariz. 507, ¶ 7, 353 P.3d 847, 848 (2015). We find no reason to disturb the court's rulings here.
¶7 Rule 32.1(a) permits post-conviction relief from a conviction or sentence that is the result of a constitutional violation, including a claim of ineffective assistance of counsel. See State v. Petty, 225 Ariz. 369, ¶ 11, 238 P.3d 637, 641 (App. 2010). Such a claim is ordinarily subject to preclusion by waiver, pursuant to Rule 32.2(a)(3), which precludes any such claim "[t]hat has been waived at trial, on appeal, or in any previous collateral proceeding." See also Ariz. R. Crim. P. 32.2(b) (excepting, from preclusion under Rule 32.2(a), claims based on Rule 32.1(d), (e), (f), (g), or (h)). Similarly, an untimely claim of ineffective assistance of counsel is barred by Rule 32.4(a), which provides, "Any notice not timely filed may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h)."
¶8 In Smith, our supreme court considered only the waiver provision of Rule 32.2(a)(3). Smith, 202 Ariz. 446, ¶ 3, 46 P.3d at 1068; see also State v. Lopez, 234 Ariz. 513, ¶ 8, 323 P.3d 1164, 1166 (App. 2014). Distinguishing constitutional claims that are subject to waiver by counsel from those based on rights that require a defendant's personal waiver, the court concluded the latter claims would not be deemed waived, for the purpose of Rule 32.1(a)(3), absent record evidence that "the defendant 'knowingly, voluntarily and intelligently' waived the claim." Smith, 202 Ariz. 446, ¶¶ 8, 12, 46 P.3d at 1070-71, quoting Ariz. R. Crim. P. 32.2 cmt.
¶9 But this court has since explained that the waiver principles discussed in Smith do not apply to proceedings that are untimely and, therefore, subject to the time bar in Rule 32.4(a). Lopez, 234 Ariz. 513, ¶¶ 7-8, 323 P.3d at 1166; see also A.R.S. § 13-4234(G) (stating time limits for notice of post-conviction relief "are jurisdictional"). Accordingly, Beverett's claim of ineffective assistance of counsel is time-barred under Rule 32.4(a), notwithstanding his characterization of the claim as one arising from an "irreconcilable conflict of interest" and his assertion that, under Smith, the claim is not precluded by Rule 32.2(a)(3). See Lopez, 234 Ariz. 513, ¶¶ 7-8, 323 P.3d at 1166.
Beverett's challenge to grand jury proceedings, which he cites specifically on review, is similarly time-barred, as it is not grounded in Rule 32.1(d), (e), (f), (g), or (h). See Ariz. R. Crim. P. 32.4(a).
¶10 In addition, we agree with the trial court that Beverett's original notice provides an insufficient basis to proceed pursuant to Rule 32.1(e), which provides a ground for relief based on "[n]ewly discovered material facts [that] probably exist and . . . probably would have changed the verdict or sentence." Although a claim under Rule 32.1(e) may be raised in a successive or untimely petition, see Ariz. R. Crim. P. 32.2(b), 32.4(a), when raised in such circumstances, the notice of post-conviction relief "must set forth the substance of the specific exception and the reasons for not raising the claim in the previous petition or in a timely manner." Ariz. R. Crim. P. 32.2(b). And, importantly, "If the specific exception and meritorious reasons do not appear substantiating the claim and indicating why the claim was not stated in the previous petition or in a timely manner, the notice shall be summarily dismissed." Id.
¶11 Here, the trial court correctly reasoned that even if the legal principle identified in Smith and cited by Beverett "may be earnestly 'newly discovered,' it is certainly not a 'material fact'" under Rule 32.1(e). We agree. Rule 32.1(e) permits relief on the basis of newly discovered material facts, not the recent discovery of legal authority. See generally State v. Saenz, 197 Ariz. 487, ¶ 7, 4 P.3d 1030, 1032 (App. 2000) (to establish claim of newly discovered evidence, defendant must show "that the evidence was discovered after trial although it existed before trial; that it could not have been discovered and produced at trial through reasonable diligence; that it is neither cumulative nor impeaching; that it is material; and that it probably would have changed the verdict"). Accordingly, Beverett's notice failed to include "meritorious reasons . . . substantiating [a] claim" of newly discovered material facts under Rule 32.1(e), and it was subject to dismissal. Ariz. R. Crim. P. 32.2(b).
¶12 Beverett has also failed to show the trial court abused its discretion in dismissing the notice of his claim, raised in his "addendum," that a plea offer from the state had been sent to the wrong apartment number and constituted a newly discovered material fact that entitled him to relief pursuant to Rule 32.1(e). On review, Beverett's argument centers, as it did below, on his claim that his attorney's "failure to produce on [the] record any plea before trial constitutes ineffective assistance of counsel." He emphasizes that no "physical plea" was produced during any of his court appearances, "thereby depriving [him] of his right to effective assistance of counsel because the record is void of any evidence of any written plea, and [the written offer] is not part of any record or proceeding." Thus, at bottom, Beverett claims his attorney performed deficiently by failing to present the offer's terms "in court in front of [Beverett] on [the] record."
¶13 We are aware of no authority suggesting a defense attorney's failure to make a record of a plea offer, standing alone, constitutes constitutionally deficient performance. See Missouri v. Frye, 566 U.S. 134, 145-46 (2012) (suggesting only that "[t]he prosecution and trial courts" might make record of plea offers "to help ensure against late, frivolous, or fabricated claims [of ineffective assistance] after . . . a trial leading to conviction with resulting harsh consequences"). Similarly, Beverett cites no authority, and we are aware of none, suggesting record evidence of a knowing and voluntarily waiver is required when a defendant rejects a plea agreement. Such evidence is required when a defendant waives his constitutional rights and enters a guilty plea. See Ariz. R. Crim. P. 17.2(c); State v. Avila, 127 Ariz. 21, 25, 617 P.2d 1137, 1141 (1980) ("[I]n any proceeding involving the surrender of Constitutional rights, it must appear from the record that the waiver was knowingly, intelligently and voluntarily made."). But, in contrast, "a criminal defendant has no constitutional right to plea bargain," State v. Donald, 198 Ariz. 406, ¶ 14, 17, 10 P.3d 1193, 1200 (App. 2000), thus, a defendant's rejection of a plea offer, in itself, does not implicate the waiver of constitutional rights.
¶14 We recognize that, "as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea . . . that may be favorable to the accused," and it is constitutionally deficient performance to "allow[] the offer to expire without advising the defendant or allowing him to consider it." Frye, 566 U.S. at 145. But Beverett has never clearly alleged his attorney failed to inform him of the offer, and it appears, based on documents Beverett has filed in support of this claim, that his attorney had told him of the offer and likely discussed it with him before trial. The attorney's cover letter, sent with the agreement on August 17, 2010, refers to "the offer" as if Beverett had already been aware of it, as well as anticipated "discuss[ions]" before trial. Specifically, the attorney wrote, "I have enclosed a copy of the offer so that you have time to review it prior to our discussing the matter. In any event, we need to let the prosecutor's office know how we plan to proceed as soon as possible."
In an affidavit attached to the addendum filed below, Beverett averred that he had never received his attorney's August 2010 correspondence and that the offer was never "spoken of in any court proceeding." He also stated, somewhat cryptically, that he had "neither on the record nor off the record at any time intelligently, voluntarily, or personally know[n] that a 5 year plea offer existed." We are unable to discern what Beverett might mean by qualifying his knowledge in this manner, and it is the only statement Beverett makes, either below or in this court, about what his attorney told him about the offer. --------
¶15 As previously discussed, an untimely notice of post-conviction relief is subject to summary dismissal if it fails to include "meritorious reasons . . . substantiating the claim and indicating why the claim was not stated in the previous petition or in a timely manner." Ariz. R. Crim. P. 32.2(b). The trial court reasonably could have concluded that, in the absence of any express allegation that his attorney had never told him about the state's offer or had misinformed him about it in some specific way, Beverett's assertions—that he never saw the written plea offer before trial and that it was never made part of the record—were insufficient to constitute the "meritorious reasons" required by Rule 32.2(b) for an untimely claim. Cf. Donald, 198 Ariz. 406, ¶¶ 14, 17, 10 P.3d at 1200 (defendant must present more than "conclusory assertion" that counsel failed to adequately communicate plea offer to obtain Rule 32.8 hearing).
Disposition
¶16 Beverett has failed to show the trial court abused its discretion in dismissing his notice of post-conviction relief, and his addendum to that notice, for failure to comply with Rule 32.2. Accordingly, although we grant review, we deny relief.