Opinion
2 CA-CR 2023-0054-PR
04-04-2023
The State of Arizona, Respondent, v. Skyler F. Carpenter, Petitioner.
Dennis M. McGrane, Yavapai County Attorney By Scott Blake, Deputy County Attorney, Prescott Counsel for Respondent Skyler F. Carpenter, Tucson In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Yavapai County Nos. P1300CR202101179 and V1300 CR202180520 The Honorable Krista M. Carman, Judge
Dennis M. McGrane, Yavapai County Attorney By Scott Blake, Deputy County Attorney, Prescott Counsel for Respondent
Skyler F. Carpenter, Tucson In Propria Persona
Judge Sklar authored the decision of the Court, in which Vice Chief Judge Staring and Judge O'Neil concurred.
MEMORANDUM DECISION
SKLAR, Judge:
¶1 Skyler Carpenter seeks review of the trial court's ruling summarily dismissing his 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. Mendoza, 249 Ariz. 180, ¶ 1 (App. 2020). Carpenter has not met his burden of establishing such abuse here.
¶2 Pursuant to a plea agreement, Carpenter was convicted of attempted sale or transportation of narcotic drugs and possession of drug paraphernalia in cause number CR202101179 and destruction of or injury to a public jail in cause number CR202180520. The trial court sentenced him to concurrent prison terms, the longest of which was 2.5 years.
¶3 Thereafter, Carpenter initiated a proceeding for post-conviction relief under both cause numbers, and the trial court appointed counsel. After reviewing the record, counsel filed a notice, stating she was "unable to identify any colorable claims" to raise in a Rule 33 petition. The court granted Carpenter leave to file a pro se petition.
¶4 In that petition, Carpenter cited Rule 33.1(a) and argued that trial counsel had "rendered ineffective assistance" by failing "to properly communicate" with him about the plea agreement, specifically whether probation was available. Carpenter, who is deaf, maintained that the interpreter "had [a] difficult time trying to keep up with the communications" and failed to "translat[e] everything 100% correctly." In addition, Carpenter cited Rule 33.1(c), suggesting that his sentence was not authorized by law or the plea agreement.
¶5 In November 2022, the trial court summarily dismissed Carpenter's petition. The court determined that "the record contradicts" Carpenter's argument of ineffective assistance based on improper communications about the plea. According to the court, at the change of plea hearing, it "went over all of the terms of the plea, including the fact that probation [was] not available pursuant to the plea agreement," and Carpenter acknowledged that he had read the plea agreement and that it "was clear." Consistent with that acknowledgement, the plea agreement reads, "Probation is not available, pursuant to stipulation of the parties." Carpenter initialed the page containing this language, and he signed the plea agreement. The court also observed that Carpenter had been "provided two sworn [American Sign Language] court interpreters for the change of plea and sentencing hearing." In addition, the court determined that the sentences imposed were "legal, stipulated and mitigated." This petition for review followed.
¶6 On review, Carpenter repeats his claim that trial counsel failed to properly communicate with him about the plea agreement and led him "into believing he was going to receive probation." He again argues that the translator "did not translate everything 100% correctly," contributing to this "lack of communications." Carpenter suggests the trial court erred in treating his claim as one of ineffective assistance because counsel had "disregarded" his "choices." But in his petition for post-conviction relief, Carpenter framed his claim as one of ineffective assistance. See State v. Petty, 225 Ariz. 369, ¶ 11 (App. 2010) (claim of ineffective assistance is cognizable as constitutional claim). The court therefore did not err in treating it as such.
To the extent Carpenter intended any alleged interpretation errors as a separate basis for relief, we conclude he has waived it on review because he failed to meaningfully support his argument with citations to the record or relevant legal authority. See Ariz. R. Crim. P. 33.16(c)(2)(C)-(D) (petition for review shall contain specific references to record and supporting legal authority); State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (unsupported claim waived on review).
¶7 "By entering a guilty plea, a defendant waives all non-jurisdictional defects and defenses, including claims of ineffective assistance of counsel, except those that relate to the validity of a plea." State v. Banda, 232 Ariz. 582, ¶ 12 (App. 2013). "But a defendant may obtain post-conviction relief on the basis that counsel's ineffective assistance led the defendant to make an uninformed decision to accept or reject a plea bargain, thereby making his or her decision involuntary." Id.
¶8 Here, although he does not do so directly, Carpenter seems to suggest that trial counsel's improper communications led to him making an uninformed decision about the plea agreement. Even assuming his claim were one for which post-conviction relief is available, Carpenter has failed to establish that it is colorable.
¶9 "To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." Id.
¶10 Carpenter has not asserted either below or on review that had trial counsel better communicated with him about the plea agreement, he would not have accepted it. See State v. Ysea, 191 Ariz. 372, ¶ 17 (1998) ("To establish prejudice in the context of a plea agreement, a defendant must show a reasonable probability that except for his lawyer's error he would not have waived his right to trial and entered a plea."). The trial court therefore did not abuse its discretion in rejecting this claim. See Mendoza, 249 Ariz. 180, ¶ 1.
¶11 Carpenter also raises several issues for the first time on review. However, we need not address these issues because the trial court did not have the opportunity to do so. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (appellate court will not consider on review any issue on which trial court did not have first opportunity to rule); Ariz. R. Crim. P. 33.16(c)(2)(B) (petition for review shall include statement of issues trial court decided that defendant is presenting for review). In any event, most of these issues, which challenge the legality of the underlying traffic stop and vehicle search, would be waived because Carpenter pled guilty. See Banda, 232 Ariz. 582, ¶ 12.
Carpenter does not reassert his Rule 33.1(c) claim on review. We therefore do not address it. See Ariz. R. Crim. P. 33.16(c)(4) ("A party's failure to raise any issue that could be raised in the petition for review or cross-petition for review constitutes a waiver of appellate review of that issue.").
¶12 Accordingly, we grant review but deny relief.