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State v. Brown

ARIZONA COURT OF APPEALS DIVISION ONE
Apr 1, 2021
No. 1 CA-CR 19-0696 PRPC (Ariz. Ct. App. Apr. 1, 2021)

Opinion

No. 1 CA-CR 19-0696 PRPC

04-01-2021

STATE OF ARIZONA, Respondent, v. WILLIAM EDWARD BROWN, Petitioner.

COUNSEL William Edward Brown, Florence Petitioner


NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Petition for Review from the Superior Court in Maricopa County
No. CR2017-002052-001
The Honorable William R. Wingard, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

William Edward Brown, Florence
Petitioner

MEMORANDUM DECISION

Presiding Judge David B. Gass, Judge Michael J. Brown, and Judge David D. Weinzweig delivered the decision of the Court.

PER CURIAM :

¶1 William Edward Brown petitions this court for review from the dismissal of his petition for post-conviction relief, filed under Rule 33 of the Arizona Rules of Criminal Procedure. We have considered the petition for review, and for the reasons stated, we grant review and deny relief.

¶2 Under an agreement with the State, Brown pled guilty to attempting to lure a minor for sexual exploitation and attempting to commit child prostitution. In accord with the terms of the plea agreement, the superior court sentenced Brown to a minimum term of five years' imprisonment for the attempted prostitution conviction, to be followed by lifetime probation for the attempted luring conviction.

¶3 Brown filed a notice requesting post-conviction relief, and the superior court appointed counsel to represent him. After Brown's appointed attorney declared he could find no colorable post-conviction claim to pursue, Brown submitted a petition for post-conviction relief in propria persona. The superior court summarily dismissed the petition, occasioning our review. We will not upset the superior court's decision absent an abuse of discretion, and we will affirm the decision "if it is legally correct for any reason." State v. Roseberry, 237 Ariz. 507, 508, ¶ 7 (2015).

¶4 Brown contends he presented a colorable claim he did not intelligently and voluntarily plea because (1) the prosecution and superior court fabricated evidence against him and (2) defense counsel provided ineffective assistance by failing to investigate or challenge the fabricated evidence. See Ariz. R. Crim. P. 33.1(a) (allowing relief if a plea was obtained in violation of state or federal constitution). This court has jurisdiction under article VI, section 9, of the Arizona Constitution, A.R.S. § 13-4031, and Ariz. R. Crim. P. 33.1(a). We discern no abuse of discretion in the superior court's decision to dismiss Brown's petition.

¶5 Brown was originally charged with child prostitution and attempted sexual conduct with a minor, resulting from a sting operation

involving an undercover officer. At a settlement conference, the superior court informed Brown one of the terms of the State's plea offer would require him to "forfeit any money seized by the Chandler Police Department, which [was] like 40 to 60 bucks, or something like that, if [the court] read it correctly." Brown disputed he had any money on him when he was apprehended by police, to which his attorney responded, "I thought you had some money in your wallet?" When Brown insisted he had just "two $2 bills in [his] wallet," the court paused to read the plea offer as well as the police department's impound record. According to the police report, Brown said he "would have given [the fictitious victim] $40 to $60" if he had brought her back to his house, but there was no indication police found or impounded any money on Brown at the time. After the court indicated it might have initially misread the documents, the prosecutor noted the forfeiture language in the plea agreement was "standard"—to which Brown responded with an indication he understood.

¶6 Brown fails to establish a colorable claim premised on the falsification of evidence against him or his attorney's failure to challenge that evidence. By pleading guilty, Brown waived all non-jurisdictional defects, including the falsification of evidence and, under certain circumstances, defense counsel's failure to object. See Tollett v. Henderson, 411 U.S. 258, 266-67 (1973); State v. Flores, 218 Ariz. 407, 409-10, ¶ 6 (App. 2008); State v. Quick, 177 Ariz. 314, 316 (App. 1993).

¶7 Brown contends he was unaware his guilty plea would serve to waive all non-jurisdictional defects because he never received a copy of the "Notice of Rights of Review After Conviction and Procedure" form. This argument is unpersuasive. First, that document is generally given at the time of sentencing—i.e., after the defendant has already entered a guilty plea—and the form does not provide substantive information about the waiver of constitutional rights. Second, the record shows before Brown pled guilty, he was advised—and indicated he understood—by pleading he would waive numerous constitutional rights including the presumption of innocence and the right to present his case to a jury.

¶8 To the extent Brown did not waive his claim on the theory "counsel's ineffective assistance led [him] to make an uninformed decision" to enter the plea, the claim nonetheless lacks merit. See State v. Banda, 232 Ariz. 582, 585, ¶ 12 (App. 2013). The record indicates the parties came to understand the evidence supported, or was at least consistent with, Brown's position about having little money on his person when he was apprehended. Three months later, Brown pled guilty after confirming he was doing so voluntarily, without having any unanswered questions, and

based on a factual recitation, which did not include him having any money on his person at the time of apprehension. On this record, Brown fails to show his plea was involuntarily or unintelligently made.

¶9 We, therefore, grant review but deny relief.


Summaries of

State v. Brown

ARIZONA COURT OF APPEALS DIVISION ONE
Apr 1, 2021
No. 1 CA-CR 19-0696 PRPC (Ariz. Ct. App. Apr. 1, 2021)
Case details for

State v. Brown

Case Details

Full title:STATE OF ARIZONA, Respondent, v. WILLIAM EDWARD BROWN, Petitioner.

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Apr 1, 2021

Citations

No. 1 CA-CR 19-0696 PRPC (Ariz. Ct. App. Apr. 1, 2021)