Opinion
No. 1 CA-CR 17-0544 PRPC
03-01-2018
COUNSEL Maricopa County Attorney's Office, Phoenix By Gerald R. Grant Counsel for Respondent Dwayne Elliott, San Luis 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2015-129523-001 CR2015-147490-001
The Honorable Annielaurie Van Wie, Judge Pro Tempore
REVIEW GRANTED AND RELIEF DENIED
COUNSEL Maricopa County Attorney's Office, Phoenix
By Gerald R. Grant
Counsel for Respondent Dwayne Elliott, San Luis
Petitioner
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which Presiding Judge Michael J. Brown and Judge Maria Elena Cruz joined. WEINZWEIG, Judge:
¶1 Dwayne Elliott petitions this Court to review the dismissal of his petition for post-conviction relief ("PCR"). We have considered the petition for review and, for the reasons stated, grant review and deny relief.
¶2 Petitioner pled guilty to theft (a class 6 felony with two prior felony convictions) and armed robbery (a class 2 dangerous felony). He received a 13-year sentence for the armed robbery charge and a 5-year sentence for the theft charge, to run consecutively. By entering a guilty plea, Petitioner waived all non-jurisdictional defenses, errors and defects before the plea. State v. Flores, 218 Ariz. 407, 409-10, ¶ 6 (App. 2008).
¶3 Petitioner timely filed a notice of post-conviction relief. The superior court appointed defense counsel to represent Petitioner in the PCR proceeding, but counsel found no issues to raise after reviewing the record and considering Petitioner's input. Petitioner then moved for post-conviction relief pro se. He claimed he received ineffective assistance of counsel in connection with the plea agreement. He asserted that plea counsel failed to investigate the crime and Petitioner's potential defenses, thus depriving Petitioner of the disclosures and discovery necessary to make an informed decision on his plea. Petitioner maintained, in particular, that plea counsel deprived him of actual DNA test results. Petitioner insisted that such DNA test results exist based on police reports which indicate that police officers swabbed for biological evidence at the crime scene. The superior court summarily dismissed his petition. In his petition for review, Petitioner raises nearly identical arguments as he did in the superior court.
¶4 "[A] grant or denial of post-conviction relief is within the trial court's discretion. We will not reverse the trial court's decision unless an abuse of discretion affirmatively appears." State v. Watton, 164 Ariz. 323, 325 (1990). The superior court did not abuse its discretion.
¶5 To begin, Petitioner offers no reason to doubt the veracity of his admissions to the superior court in connection with his plea agreement. In particular, he assured the court that his pleas were voluntary and he understood them. He further confirmed their factual basis. Such admissions are binding. See State v. Hamilton, 142 Ariz. 91, 93 (1984) ("A defendant must not tell the judge that his plea is entered into voluntarily if it is not.").
¶6 Petitioner also fails to meet the requirements of ineffective assistance of counsel. We apply a two-part test to assess and determine whether Petitioner received ineffective assistance and whether such ineffectiveness warrants withdrawal of the plea. State v. Anderson, 147 Ariz. 346, 351 (1985). Petitioner must demonstrate both that his plea counsel's performance was unreasonable or deficient under all the circumstances, and he suffered prejudice because "a reasonable probability [exists] that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quotation omitted).
¶7 Petitioner did not prove his plea counsel provided representation falling below an objective standard of reasonableness. Petitioner offered no evidence to believe that police officers ever tested the routine swabs from the crime scene, meaning his argument is premised upon hypothetical DNA test results. And Petitioner never demonstrated that plea counsel failed to secure and forward the hypothetical DNA test results from the State. To the contrary, plea counsel explained that he provided Petitioner with all discovery from the State prior to the plea agreement except "crime . . . transcripts."
¶8 The experience of PCR counsel is in accord. Counsel was appointed to represent Petitioner in the PCR proceeding. PCR counsel reviewed the "electronic file, transcripts and trial file" and found no basis to contest Petitioner's sentence.
¶9 Nor has Petitioner shown that the hypothetical DNA test results would have affected his plea agreement. Petitioner's unsubstantiated conclusion that DNA test results might "contain condemnatory or exonerating information" to "explore the possibility of his innocence" is neither persuasive nor sufficient. See Hamilton, 142 Ariz. at 93 ("The burden of proving ineffectiveness is on the claimant, and the proof must be a demonstrable reality, not a matter of speculation."). As the superior court found, Petitioner offered no evidence that "DNA results—whether inculpatory or exculpatory—would have or might have changed the outcome of the proceedings."
Petitioner also mentions a "potential Brady violation." He does not elaborate, but we assume he believes the State failed to disclose the hypothetical DNA test results. Although not expressly addressed by the superior court, the claim would fail for two reasons. First, Petitioner waived all non-jurisdictional defenses, including this argument, when he entered his plea agreement. Flores, 218 Ariz. at 409-10, ¶ 6; see, e.g., State v. Reed, 121 Ariz. 547, 548-49 (App. 1979) (state's failure to disclose alleged Brady evidence to grand jury is non-jurisdictional defect waived by defendant upon entering guilty plea). Second, as before, Petitioner offers no evidence that exculpatory DNA test results either exist or would have altered his plea agreement. The right to timely disclosure is limited to material evidence, see State v. Gulbrandson, 184 Ariz. 46, 63 (1995), meaning "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Strickler v. Greene, 527 U.S. 263, 280 (1999) (quotation omitted). Mere speculation that DNA evidence might exist and might have changed the outcome of the proceedings is not sufficient to warrant reversal. See, e.g., State v. Acinelli, 191 Ariz. 66, 71 (App. 1997).
¶10 At bottom, hypothetical prejudice based on hypothetical exculpatory evidence is insufficient to prove an abuse of discretion. We decline to remand or find either deficient performance or prejudice to support ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). We grant review and deny relief.