Opinion
2 CA-CR 2022-0135-PR
12-19-2022
The State of Arizona, Respondent, v. Frank Leo Eppler III, Petitioner.
Law Office of Joseph P. DiRoberto, Tucson By Joseph P. DiRoberto Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20093482001 The Honorable Scott McDonald, Judge
Law Office of Joseph P. DiRoberto, Tucson By Joseph P. DiRoberto Counsel for Petitioner
Presiding Judge Eppich authored the decision of the Court, in which Vice Chief Judge Staring and Judge Brearcliffe concurred.
MEMORANDUM DECISION
EPPICH, PRESIDING JUDGE
¶1 Frank Eppler III seeks review of the trial court's orders denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., and his motion for rehearing. We will not disturb those rulings unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Eppler has not met his burden of establishing such abuse here.
¶2 After a jury trial, Eppler was convicted of numerous drug offenses and, for each offense, the jury found he was a serious drug offender under A.R.S. § 13-3410(B). He also was convicted of aggravated assault and kidnapping. For the serious drug offender convictions, he was sentenced to mandatory life terms without the possibility of release for twenty-five years. He was sentenced to concurrent prison terms of 7.5 years for aggravated assault and 10.5 years for kidnapping. We affirmed his convictions and sentences on appeal. State v. Eppler, No. 2 CA-CR 2011-0110 (Ariz. App. Mar. 8, 2012) (mem. decision). Eppler filed a notice of post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but found "no basis in fact and/or law for post-conviction relief." The trial court dismissed the proceeding in February 2013 when Eppler did not timely file a pro se petition.
¶3 In December 2021, Eppler filed a notice of post-conviction relief asserting his trial counsel had been ineffective. He also claimed that his untimely filing was not his fault because his previous post-conviction counsel had been "incompetent and ineffective." The trial court "accepted] the untimely (and second)" notice and set a due date for the petition.
¶4 In his subsequent petition, Eppler claimed his trial and first post-conviction counsel had been ineffective. He asserted trial counsel had failed to adequately advise him about the strength of the state's case or that he would face mandatory life terms if convicted, causing him to reject a plea offer. He asserted post-conviction counsel had been ineffective in failing to raise that issue. The trial court determined Eppler was entitled to an evidentiary hearing on his claims, specifically to address whether trial counsel had "adequately informed him of the consequences before deciding whether to accept or reject the offer" and whether the plea had remained open after Eppler changed attorneys.
¶5 After that hearing, the trial court denied relief. It concluded Eppler had not shown his trial counsel failed to inform him about the plea. It noted it found counsel's testimony "significantly more credible than Eppler['s]," specifically her testimony that she had discussed the plea with Eppler, including the severity of the sentences he would face if convicted at trial, and that her standard practice would have included advising him about the strength of the state's case. Eppler filed a motion for rehearing, arguing the court "should resolve the conflict in testimony" in his favor. The court denied the motion for rehearing. This petition for review followed.
The court agreed with Eppler that it had misstated in its ruling that the trial had been set at the hearing held pursuant to State v. Donald, 198 Ariz. 406 (App. 2000), when in fact a trial date had already been set.
¶6 We first note that it was unnecessary for the trial court to reach the merits of Eppler's claims. Even disregarding the untimeliness of his second notice, see Ariz. R. Crim. P. 32.4(b)(3)(A), his claim of ineffective assistance of trial counsel is precluded because he did not raise it in his first proceeding, see Ariz. R. Crim. P. 32.2(a)(3). A court may determine a claim is precluded "[a]t any time," even when the state does not raise preclusion. Ariz. R. Crim. P. 32.2(b). His claim of ineffective assistance of post-conviction counsel is not cognizable. See State v. Escareno-Meraz, 232 Ariz. 586, ¶ 4 (App. 2013).
The trial court did not address timeliness beyond noting the state had not argued Eppler's "petition [wa]s untimely" and the court had previously accepted it.
¶7 But, even if we were to consider the merits of his claim of ineffective assistance of trial counsel, Eppler has not demonstrated he is entitled to relief. A defendant may obtain post-conviction relief based on counsel's ineffective assistance if counsel's deficient performance led the defendant to make an uninformed decision to accept or reject a plea. See State v. Banda, 232 Ariz. 582, ¶ 12 (App. 2013); see also State v. Donald, 198 Ariz. 406, ¶¶ 9, 14 (App. 2000). "Whether counsel rendered ineffective assistance is a mixed question of fact and law." State v. Denz, 232 Ariz. 441, ¶ 6 (App. 2013). At an evidentiary hearing, the defendant has "the burden of proving factual allegations by a preponderance of the evidence." Ariz. R. Crim. P. 32.13(c). We defer to the trial court with respect to any factual findings unless they are clearly erroneous. State v. Sasak, 178 Ariz. 182, 186 (App. 1993). We view the facts in the light most favorable to sustaining the trial court's decision and resolve all reasonable inferences against the defendant. Id.
¶8 On review, Eppler largely repeats the argument he made in his motion for rehearing - that the trial court should have found his testimony credible and rejected that of his trial counsel. But, "The trial court is the sole arbitrator of the credibility of witnesses." State v. Fritz, 157 Ariz. 139, 141 (App. 1988). We may conclude the court's factual findings are clearly erroneous only if they are not supported by substantial evidence. See Sasak, 178 Ariz. at 186 ("Evidence is not insubstantial merely because testimony is conflicting or reasonable persons may draw different conclusions from the evidence."). Eppler has not attempted to meet that standard here.
¶9 We grant review but deny relief.