Opinion
2 CA-CR 2013-0121-PR
05-30-2013
THE STATE OF ARIZONA, Respondent, v. FREDDIE LEE FORD JR., Petitioner.
William G. Montgomery, Maricopa County Attorney By Catherine Leisch Phoenix Attorneys for Respondent Freddie Lee Ford Jr. Tucson In Propria Persona
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF MARICOPA COUNTY
Cause No. CR2010106247001DT
Honorable Michael D. Jones, Judge
REVIEW GRANTED; RELIEF DENIED
William G. Montgomery, Maricopa County Attorney
By Catherine Leisch
Phoenix
Attorneys for Respondent
Freddie Lee Ford Jr. Tucson
In Propria Persona
KELLY, Judge. ¶1 Petitioner Freddie Ford Jr. seeks review of the trial court's order denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Ford has not sustained his burden of establishing such abuse here. ¶2 Pursuant to a plea agreement, Ford was convicted of three counts of aggravated assault for threatening two police officers and a third person with a pellet gun. The trial court sentenced him to enhanced, aggravated, consecutive sentences of 18.5 years on two of the counts and suspended the imposition of sentence and ordered a three-year term of probation on the third count, to begin "[u]pon absolute discharge from prison" on the first two counts. ¶3 Ford thereafter initiated a proceeding for post-conviction relief, and appointed counsel filed a notice stating he was "unable to find any claims for relief to raise in post-conviction relief proceedings." In a pro se petition, however, Ford claimed trial counsel was ineffective because he had "failed to explain [the] contents of [the] plea agreements to [him]" and Ford was confused by the terms of the agreement, particularly because he was on psychotropic medication at the time he entered the plea. He also maintained the court had aggravated his sentences improperly "based on testimony by officers of prior gang affiliations more than [ten years] old," as well as on prior convictions that "were too old," and in ordering consecutive sentences because the crimes "occurred on the same occasion." The trial court summarily denied relief. ¶4 On review, Ford essentially repeats his arguments below, expanding on some of them. He maintains the trial court abused its discretion in accepting his guilty plea while he was on psychotropic medication and trial counsel was ineffective because he allowed Ford to plead guilty while on that medication. He further contends the court erred in imposing enhanced sentences because the conviction upon which the enhanced sentence was based was "not committed within the four to ten year[s] immediately proceeding [sic] the date of the new offenses." He again asserts that the court could not impose consecutive sentences because the convictions arose from "one single act." ¶5 To present a colorable claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient under prevailing professional norms and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Ysea, 191 Ariz. 372, ¶ 15, 956 P.2d 499, 504 (1998). "A colorable claim of post-conviction relief is 'one that, if the allegations are true, might have changed the outcome.'" State v. Jackson, 209 Ariz. 13, ¶ 2, 97 P.3d 113, 114 (App. 2004), quoting State v. Runningeagle, 176 Ariz. 59, 63, 859 P.2d 169, 173 (1993). And "a defendant may seek relief from a conviction on the basis that counsel's ineffective assistance induced a guilty plea." State v. Donald, 198 Ariz. 406, ¶ 10, 10 P.3d 1193, 1198 (App. 2000). ¶6 Ford makes several allegations of ineffective assistance of trial counsel, most of them sufficiently vague or unsupported that we cannot meaningfully address them. He does assert, however, that counsel was ineffective in relation to his acceptance of the plea agreement. But, despite his claims that he was unable to understand the plea agreement or what was happening at his change-of-plea hearing, the record below shows that the trial court asked Ford about what medications he was taking and if they affected his ability to "think clearly." Ford clearly and unambiguously stated "No." And the remainder of the transcript shows Ford responding appropriately to questions directed to him. To state a colorable claim, Ford must do more than simply contradict what the record plainly shows. See State v. Jenkins, 193 Ariz. 115, ¶ 15, 970 P.2d 947, 952 (App. 1998) (defendant's claim he was unaware sentence "must be served without possibility of early release" not colorable when "directly contradicted by the record"). Because he merely contradicts the record, Ford has not established prejudice arising from counsel's actions in relation to Ford's use of medication. Therefore, the trial court did not abuse its discretion in finding this claim without merit. See State v. Salazar, 146 Ariz. 540, 541, 707 P.2d 944, 945 (1985) (if defendant fails to make sufficient showing on either element of Strickland test, court need not determine if other element established). ¶7 For the same reason, we reject Ford's claim that his due process rights were violated by the court's failure "to make [an] on-record determination of voluntarines[s] given [Ford's] admitted use of medication daily at the county jail by doctors." In support of this argument Ford relies on Miles v. Stainer, 108 F.3d 1109, 1112 (9th Cir. 1997), in which the Ninth Circuit determined that "[d]ue process requires a trial court to hold a competency hearing sua sponte whenever the evidence before it raises a reasonable doubt whether a defendant is mentally competent." But in this case, a competency evaluation pursuant to Rule 11, Ariz. R. Crim. P., already had taken place. And, nothing in the transcript of the change-of-plea hearing supports a conclusion that the court had before it evidence to raise a doubt about Ford's competence. ¶8 The trial court also correctly denied relief on Ford's sentencing claims. A defendant is properly sentenced as a "category two repetitive offender" if he or she "stands convicted of a felony and has one historical prior felony conviction." A.R.S. § 13-703(B)(2). A historical felony is defined as, inter alia, "[a]ny class 2 or 3 felony . . . that was committed within the ten years immediately preceding the date of the present offense." A.R.S. § 13-105(22)(b). In calculating the ten-year period, "[a]ny time spent . . . incarcerated is excluded." Id. According to his own sentencing memorandum, Ford was incarcerated for five years after his conviction in 1996 for crimes committed in September 1995 and subsequently was imprisoned after being convicted of felonies in 2001 and 2007. The events giving rise to the charges at issue here occurred in February 2010. Thus, on the record before us, the prior conviction used to enhance Ford's sentence was committed within ten years of the current offenses when calculated according to § 13-105(22)(b). The trial court did not, therefore, abuse its discretion in denying relief on the claim. ¶9 Ford's claim that consecutive sentences were barred because they arose from the same actions likewise is without merit. Section 13-116, A.R.S., provides that an act may be punished under "different sections of the laws," but that "in no event may sentences be other than concurrent." But "§ 13-116 does not apply to sentences imposed for a single act that harms multiple victims." State v. Riley, 196 Ariz. 40, ¶ 21, 992 P.2d 1135, 1142 (App. 1999), citing State v. Gordon, 161 Ariz. 308, 778 P.2d 1204 (1989). All three assaults here were committed against different victims. Thus consecutive sentences were not unlawful, and the trial court did not abuse its discretion in rejecting the claim. ¶10 For all these reasons, although we grant the petition for review, we deny relief.
Ford made additional claims in his petition, including that the "victims perception of the dangerousness of a deadly weapon used during an assault is not an element of aggravated assault," and that the court wrongfully considered that Ford was "a 'danger to society'" in aggravating his sentence because it thereby considered the offense dangerous and that allegation had been dismissed as part of the plea bargain. Ford does not discuss these issues on review, and we therefore do not address them. See Ariz. R. Crim. P. 32.9(c)(1) (petition for review shall contain "the reasons why the petition should be granted" and "specific references to the record"); State v. Rodriguez, 227 Ariz. 58, n.4, 251 P.3d 1045, 1048 n.4 (App. 2010) (declining to address argument not raised in petition for review).
Ford also alleges on review that counsel "guaranteed" him "that he would only receive 10.5 years to sign the plea agreement and plea[d] guilty." Below he merely asserted, as part of his ineffective assistance of counsel claim, that counsel had "le[]d" him "to understand that there would be just one combined plea agreement with the consequences ranging from 9 years to the aggravating max of 18.5." This court will not consider for the first time on review issues that have neither been presented to, nor ruled on by, the trial court. State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980); see also Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review shall contain "[t]he issues which were decided by the trial court and which the defendant wishes to present" for review).
____________________
VIRGINIA C. KELLY, Judge
CONCURRING: ____________________
GARYE L. VÁSQUEZ, Presiding Judge
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PHILIP G. ESPINOSA, Judge