Opinion
2 CA-CR 2024-0028-PR
06-26-2024
The State of Arizona, Respondent, v. Gordon Keith Golding, Petitioner.
Rachel Mitchell, Maricopa County Attorney By Johnny Jacquez, Deputy County Attorney, Phoenix Counsel for Respondent Steven Koestner, Maricopa County Legal Advocate By Grace M. Guisewite, Deputy Legal Advocate, Phoenix Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR2019157118001 The Honorable Jeffrey A. Rueter, Judge
COUNSEL
Rachel Mitchell, Maricopa County Attorney By Johnny Jacquez, Deputy County Attorney, Phoenix Counsel for Respondent
Steven Koestner, Maricopa County Legal Advocate By Grace M. Guisewite, Deputy Legal Advocate, Phoenix Counsel for Petitioner
Judge Kelly authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Eckerstrom concurred.
MEMORANDUM DECISION
KELLY, JUDGE
¶1 Gordon Golding seeks review of the superior court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 33, Ariz. R. Crim. P. We accept review and grant relief. We vacate the court's dismissal order and remand the case for an evidentiary hearing.
¶2 In November 2022, Golding pled guilty to two counts of attempted child molestation, one count of attempted sexual conduct with a minor, two counts of sexual abuse, and two counts of attempted voyeurism. The plea agreement called for consecutive prison terms totaling between 23.5 and 31.5 years for the counts of sexual abuse and attempted child molestation. For the remaining counts, the plea agreement stated the sentences would be suspended and Golding would be placed on lifetime probation. The following month, the superior court sentenced Golding consistent with the plea, imposing an aggregate 31.5-year prison term-the longest available under the plea agreement.
¶3 Golding timely sought post-conviction relief. He asserted the sentencing court had been biased and that his counsel had been ineffective in failing to inform him that the sentencing court stated, in chambers, that it was likely to impose the maximum prison term available under the plea. He submitted an affidavit from trial counsel avowing that, during an in-chambers meeting after the plea colloquy, the court had stated it "did not see any reason why [it] shouldn't max Mr. Golding out." Counsel also avowed that she had previously told Golding that she expected the court to impose the minimum prison term but did not relay the court's comment to him because she incorrectly believed the court had accepted the plea and Golding could not withdraw. Golding stated in an affidavit that he would have withdrawn from the plea had he known of the court's in-chambers comment.
¶4 The superior court summarily dismissed Golding's petition. It concluded Golding's bias claim did not identify any statements by the sentencing court that would overcome the presumption that the court was free of bias. Regarding Golding's claim of ineffective assistance, it noted there had been extensive plea negotiations and Golding had been fully advised about the prison term he could face under the plea. It thus found "unpersuasive" Golding's claim that he would have withdrawn from the plea had he known of the sentencing court's statement. The court concluded Golding had demonstrated neither that counsel was ineffective nor that he was prejudiced. This petition for review followed.
¶5 In his petition for review, Golding asserts the superior court erred in rejecting his claim of ineffective assistance of counsel. A defendant is entitled to post-conviction relief if counsel gave erroneous advice or failed to provide information material to the defendant's decision whether to accept a plea and the defendant would have made a different decision if correctly and fully informed. See State v. Donald, 198 Ariz. 406, ¶¶ 16, 20, 46 (App. 2000). A trial court must hold an evidentiary hearing if the defendant presents a colorable claim. State v. Gutierrez, 229 Ariz. 573, ¶ 25 (2012); see also Ariz. R. Crim. P. 33.13(a). To establish "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)). In evaluating whether a claim is colorable, we must treat any factual assertions as true unless they are directly contradicted by the record. See State v. Jackson, 209 Ariz. 13, ¶ 2 (App. 2004); State v. Jenkins, 193 Ariz. 115, ¶¶ 5, 15 (App. 1998).
Golding does not reassert his claim of judicial bias. We therefore do not address it. See Ariz. R. Crim. P. 33.16(c)(2)(B) (petition must contain "a statement of issues the trial court decided that the defendant is presenting for appellate review").
¶6 Golding has made a colorable claim that his trial counsel's conduct fell below prevailing professional standards. See Bennett, 213 Ariz. 562, ¶ 21. Golding's potential prison term had been the focus of plea negotiations, and counsel knew Golding was concerned about the length of his term "given his age, medical history, and family medical history." She averred she had told Golding that she believed he was likely to receive the shortest available term. Counsel also acknowledged that she had incorrectly believed the sentencing court accepted the plea after completing the plea colloquy and thus that Golding would not be permitted to withdraw from the plea even upon learning the court was inclined to impose the longest available term. But the court had expressly deferred accepting the plea until sentencing. Thus, Golding could have withdrawn from the plea agreement under Rule 17.4(b), Ariz. R. Crim. P.
¶7 And Golding has made a colorable claim of prejudice. As noted above, Golding provided evidence that counsel had informed him that he was likely to receive a lesser sentence. And he avowed that, had he known of the sentencing court's comment, he would have withdrawn from the plea before that plea was accepted. The superior court was correct that Golding was fully aware that he could face a 31.5-year aggregate prison term. But Golding's awareness that he could receive the maximum term does not contradict his claim that he would have withdrawn from the plea had he known the court was likely to impose that term. Because we are required to take Golding's assertion as true and it is not contradicted by the record, Golding has made a colorable claim of prejudice. See Jackson, 209 Ariz. 13, ¶ 2; Jenkins, 193 Ariz. 115, ¶¶ 5, 15.
Citing State v. Goswick, 142 Ariz. 582 (1984), and State v. Wilson, 179 Ariz. 17 (App. 1993), the state asserts the superior court was free to disregard Golding's affidavit as "self-serving." In Goswick, our supreme court noted a defendant's affidavit describing the potential testimony of two other witnesses was insufficient to establish a colorable claim in the absence of other evidence. 142 Ariz. at 585. In Wilson, this court determined a defendant could not "overcome the inference of waiver by merely asserting that he has previously been unaware of his claim," concluding such a claim must be supported "by more than just . . . self-serving assertions." 179 Ariz. at 20. But these cases do not suggest a trial court may reject a defendant's affidavit solely because it finds the defendant's assertions lack credibility or are "self-serving." And, in any event, Golding's assertions about whether he would have withdrawn from the plea agreement are supported not only by his affidavit, but by his trial counsel's-namely that Golding's overriding concern was the length of the prison term he would face under the plea.
¶8 Golding has made a colorable claim of ineffective assistance of counsel and is entitled to an evidentiary hearing for the superior court to determine whether his factual assertions are credible. We therefore vacate the court's order summarily dismissing Golding's petition and remand the case for an evidentiary hearing.