Opinion
No. 1 CA-CR 17-0382 PRPC
01-25-2018
STATE OF ARIZONA, Respondent, v. WILLIAM L. DAVIS, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Lisa Marie Martin Counsel for Respondent William L. Davis, 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2015-104264-001
The Honorable Alfred M. Fenzel, Judge (retired)
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Lisa Marie Martin
Counsel for Respondent
William L. Davis, Florence
Petitioner
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Jennifer B. Campbell joined.
McMURDIE, Judge:
¶1 William L. Davis petitions this court for review from the dismissal of his petition for post-conviction relief of-right ("PCR") filed pursuant to Arizona Rule of Criminal Procedure ("Rule") 32.1. We have considered the petition for review and, for the reasons stated, grant review but deny relief.
¶2 In 2015, Davis pled guilty to one count of sexual conduct with a minor under the age of 15 (Count 1) and two counts of attempted sexual conduct with a minor under the age of 15 (Counts 2 and 3). As set forth in the plea agreement, Davis stipulated to an aggravated term of 27 years' imprisonment on Count 1 (based on stipulated aggravating factors of harm to the victim, young age of victim, abuse of trust, and need to deter future conduct), followed by concurrent terms of lifetime probation on Counts 2 and 3.
¶3 After the superior court sentenced him in accordance with the terms of the plea agreement, Davis timely commenced PCR proceedings. Counsel was appointed to represent Davis. After reviewing the record, Counsel notified the court he had found no colorable claims for relief. See Montgomery v. Sheldon, 181 Ariz. 256, 260 (Montgomery I ); op sup., 182 Ariz. 118, 119 (Montgomery II ) (1995). Davis then filed a pro se PCR arguing that trial counsel was ineffective when he failed to: (1) request a psychological evaluation or otherwise investigate Davis's mental health, and (2) advise Davis that he could raise a defense to the charges based on mental disease or defect. The superior court summarily dismissed the PCR, and this petition for review followed.
¶4 Absent an abuse of discretion or error of law, this court will not disturb a superior court's ruling on a petition for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). It is the petitioner's burden to show that the superior court abused its discretion. See State v. Poblete, 227
Ariz. 537, 538, ¶ 1 (App. 2011) (petitioner has burden of establishing abuse of discretion on review).
¶5 On review, Davis reasserts his ineffective assistance of counsel claims, but also argues, for the first time, that the superior court induced his guilty plea by initiating "a train of thought" and suggesting that the best "course of action" for Davis was to plead guilty. Because a petition for review may not raise an issue not first presented to the superior court, we do not address Davis's inducement claim. See Ariz. R. Crim. P. 32.9(c)(4)(B)(ii); see also State v. Bortz, 169 Ariz. 575, 577 (App. 1991).
¶6 Turning to the remaining issues, Davis fails to raise a colorable claim. "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. Leyva, 241 Ariz. 521, 527, ¶ 18 (App. 2017) (quoting State v. Banda, 232 Ariz. 582, 585, ¶ 12 (App. 2013)). Accordingly, on review, the only relevant inquiry regarding Davis's mental capacity is whether he knowingly, intelligently, and voluntarily entered the plea.
¶7 Although a "defendant is not competent to plead guilty if mental illness has substantially impaired his ability to make a reasoned choice . . . and understand the nature of the consequences of his plea," State v. Brewer, 170 Ariz. 486, 495 (1992), "a competency evaluation and hearing are not required in all cases in which the defendant pleads guilty." State v. Rose, 231 Ariz. 500, 507, ¶ 26 (2013). In this case, the record supports the superior court's finding that Davis was competent to waive his rights and enter the plea.
¶8 At the outset of the change of plea hearing, the superior court explained the nature of the proceedings, and Davis repeatedly assured the court that he understood the court's comments and instructions. When asked about his military service, Davis appropriately responded to the questions posed and gave detailed answers regarding his length of service and the locations he served. As the hearing progressed, the superior court informed Davis of the possible range of punishment he faced if he proceeded to trial, and Davis again responded that he understood the court's statements. After that discussion, but before accepting the plea, Davis requested an opportunity to speak privately with counsel, which the court granted. When the court then proceeded to the plea colloquy, Davis correctly provided his biographical information, but informed the court he had taken several medications to treat various health problems. At that point, the court asked follow-up questions regarding Davis's
understanding and mental state, and Davis stated that he understood the proceedings and avowed that the medications did not affect his judgment or reasoning. Given these repeated assurances, the court presented Davis with the plea, in detail, and Davis told the court that he voluntarily accepted the plea and waived his rights.
¶9 Because Davis "displayed normal communication skills and thought processes" and demonstrated "an understanding of his rights and the consequences of waiver," sufficient evidence supports the superior court's finding that Davis's "ability to make rational choices and to understand the attendant consequences was not substantially impaired at the time of the guilty plea." See Brewer, 170 Ariz. at 496. Therefore, the superior court did not abuse its discretion by finding Davis failed to establish a colorable claim for relief.
¶10 Davis likewise failed to set forth a colorable claim that he could assert an insanity defense. Therefore, even if counsel had been ineffective for not explaining such a defense, Davis suffered no prejudice. Under A.R.S. § 13-502, a person may be found guilty except insane if at the time of the commission of the criminal act the person was afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong. Here, the evidence showed that Davis threatened and hit the Victim to keep her from telling her mother of his sexual assaults. No evidence was presented that Davis did not know what he was doing was wrong.
¶11 We grant review but deny relief.