Opinion
No. 1 CA-CR 19-0026 PRPC
02-11-2020
STATE OF ARIZONA, Respondent, v. KILIAN GREGOIRE HALE, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Adena J. Astrowsky Counsel for Respondent Kilian Gregoire Hale, 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2012-149531-001 CR2012-149594-001 CR2013-000585-001 CR2013-000599-001 CR2013-111208-001 CR2014-131801-001
The Honorable Gregory Como, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Maricopa County Attorney's Office, Phoenix
By Adena J. Astrowsky
Counsel for Respondent Kilian Gregoire Hale, Florence
Petitioner
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Diane M. Johnsen joined. MORSE, Judge:
¶1 Kilian Gregoire Hale petitions this court for review from the dismissal of his petition for post-conviction relief, filed pursuant to Arizona Rule of Criminal Procedure ("Rule") 32. We have considered the petition for review and, for the reasons stated, grant review and deny relief.
New rules governing post-conviction relief went into effect January 1, 2020, and apply "(1) In all actions filed on or after January 1, 2020; and (2) In all other actions pending on January 1, 2020, except to the extent that the court in an affected action determines that applying the rule or amendment would be infeasible or work an injustice, in which event the former rule or procedure applies." Ariz. S. Ct. Order No. R-19-0012 (Aug. 29, 2019). Because Hale's petition was filed and decided by the superior court before January 1, 2020, we cite to the rule then in effect.
¶2 Hale pled guilty in six cases to the following offenses: possession or use of dangerous drugs (methamphetamine); three counts of trafficking in stolen property; burglary; attempted burglary; and interference with monitoring devices. The superior court imposed four concurrent prison sentences, the longest being eleven and one-half years, to be followed by three concurrent terms of probation, the longest being four years.
¶3 Hale timely filed a notice of post-conviction relief, and the superior court appointed counsel to represent him. After reviewing the record in all six cases, assigned counsel found no colorable claims to pursue. Hale proceeded in propria persona, arguing his various lawyers in the six cases provided constitutionally deficient representation. The superior court summarily dismissed his petition, leading Hale to seek relief in this court. We review the superior court's decision for an abuse of discretion. State v. Amaral, 239 Ariz. 217, 219, ¶ 9 (2016).
At the time of sentencing, at least four different attorneys had represented Hale.
¶4 In his petition for review, Hale contends he has presented colorable claims of ineffective assistance, based on defense counsel's alleged failure to investigate and pursue a not-guilty defense. To that end, Hale argues his attorneys should have (1) moved to suppress evidence obtained through search warrants, (2) challenged problematic witness identifications, and (3) sought out evidence favorable to him, such as witness statements and recent medical records. Hale further asserts that he did not make an informed decision to plead guilty because his attorneys refused to provide him copies of critical discovery provided by the State, including the aforementioned search warrants, an identification photo array, and police reports.
¶5 To merit an evidentiary hearing on an ineffective assistance of counsel claim, "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, 567, ¶ 21 (2006). Where a defendant claims counsel's substandard performance led to an invalid guilty plea, the defendant satisfies the prejudice requirement by showing "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Failing to establish either the incompetence of counsel or prejudice bars relief. Bennett, 213 Ariz. at 567, ¶ 21.
¶6 Hale does not show his attorneys performed deficiently. The record demonstrates that counsel's initial strategy was to pursue a guilty-but-insane defense, which Hale supported and encouraged. That strategy was reasonable given Hale's longstanding mental health issues and the evidence against him. See Strickland v. Washington, 466 U.S. 668, 689 (1984) ("There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.").
¶7 Nor does Hale show a reasonable probability he would have insisted on going to trial had counsel pursued a different defense strategy. His allegations do not provide a basis on which to challenge the probable cause in the search warrants, see Illinois v. Gates, 462 U.S. 213, 238 (1983), nor to suppress the evidence obtained via those warrants, see State v. Peoples, 240 Ariz. 244, 250, ¶ 26 (2016). Similarly, the photographic array does not show grounds for challenging it as impermissibly suggestive, see United States v. Burdeau, 168 F.3d 352, 357-58 (9th Cir. 1999), and the identification of Hale by a State witness is not suspicious given that Hale and the witness personally knew each other. Medical records that Hale alleges discredit a charge of marijuana possession are immaterial considering the State dismissed that count in exchange for Hale's guilty plea. Likewise, police reports that suggest Hale may not have been present at one of three burglaries committed on August 29, 2012 are of little consequence considering Hale only pleaded guilty to one of those three charges. Hale's general assertion that defense counsel could have used the State's witness statements to his benefit is mere conjecture. See State v. Donald, 198 Ariz. 406, 413, ¶ 17 (App. 2000) (observing that defendants "must provide specific factual allegations" and not merely "conclusory assertion[s]" to warrant an evidentiary hearing on an ineffective assistance claim).
¶8 Hale also asserts his final plea attorney forced him to accept the State's offer and would represent him only if he pleaded guilty. The record belies that contention. Transcribed court proceedings demonstrate Hale voluntarily pleaded guilty after engaging in multiple discussions over a period of weeks with his attorney and a settlement judge about the relative merits and drawbacks of entering a plea versus going to trial. The record does not support Hale's claim that his attorney disclosed confidential information compelling him to plead guilty. In addition, the record shows that Hale's attorney considered withdrawing because Hale accused the attorney of providing ineffective assistance during plea negotiations, and not because Hale desired to go to trial.
¶9 Hale also argues his attorneys provided deficient representation where they allegedly (1) abandoned his 2014 case, (2) failed to correct a misstatement by the settlement judge "promis[ing]" him an earlier prison discharge than the law allowed, and (3) refused to move for a speedy trial at Hale's request. The superior court did not abuse its discretion in rejecting these claims because Hale does not show the purported errors were "material to the plea decision." State v. Bowers, 192 Ariz. 419, 425, ¶ 25 (App. 1998); see also Hill, 474 U.S. at 60.
¶10 Furthermore, Hale does not substantiate his claims with specific facts supported by the record. His allegation that counsel abandoned the representation is unfounded. The settlement judge did not "promise" Hale any particular release date or determine Hale's entitlement to presentence incarceration credit. Nor does Hale show that invocation of his right to a speedy trial would have benefited him.
¶11 Between the time of Hale's initial indictment and his change of plea, the superior court twice found him incompetent for periods of time. Hale argues there were signs he was incompetent around the time he pleaded guilty as well and that his plea attorney was deficient for not urging a competency examination at that time. Hale does not present sufficient facts indicating he lacked "the capacity to understand the nature and consequences of a guilty plea" so as to warrant a Rule 11 examination. State v. Salazar, 128 Ariz. 461, 462 (1981). Even though he broke down emotionally at a settlement conference in mid-September 2015, he did not enter a change of plea until approximately one month later, after two subsequent conferences. Hale confirmed at the change of plea hearing he was competent to plead guilty and no features of the hearing suggest otherwise. See Dixon v. Ryan, 932 F.3d 789, 803 (9th Cir. 2019) (rejecting claims that further competency evaluations should have been conducted when the record demonstrated defendant's understanding of the proceedings). Hale fails to show his attorney performed deficiently under the circumstances or that a different outcome "probably" would have occurred if plea counsel had challenged his competency. Amaral, 239 Ariz. at 220, ¶ 11.
¶12 Our supreme court has not recognized application of the cumulative error doctrine to ineffective assistance claims. See State v. Pandeli, 242 Ariz. 175, 191-92, ¶ 69 (2017). Assuming it is proper to do so, we nevertheless reject Hale's claim of cumulative error. At most, the only error Hale shows is that his attorneys did not provide copies of State discovery to him at his request. In the absence of multiple deficiencies, there can be no cumulative error. Nor does Hale show a reasonable probability that he would have chosen to go to trial if his attorneys had provided discovery materials to him at an earlier time.
¶13 Hale also contends that two advisory attorneys in the underlying Rule 32 proceeding performed deficiently by not complying with superior court orders to investigate discovery issues raised by Hale. Because Hale does not have a constitutional right to advisory counsel, he cannot claim ineffective assistance of advisory counsel in an of-right Rule 32 proceeding. See State v. Russell, 175 Ariz. 529, 534-35 (App. 1993); see also Wainwright v. Torna, 455 U.S. 586, 587-88 (holding that where there is no constitutional right to counsel there can be no deprivation of effective assistance). Even if it were a cognizable claim, we discern no colorable claims of ineffective assistance of advisory counsel. Both advisory counsel and the State made efforts to comply with the court's orders concerning discovery and the court was satisfied with their performance. Hale fails to show ineffective assistance under the circumstances or that he suffered prejudice as a result.
¶14 Finally, Hale suggests the superior court committed fundamental error by depriving him of his counsel of choice. In December 2014, the superior court permitted Hale's retained counsel to withdraw and appointed new counsel based on Hale's indigency. Contrary to Hale's contention, the court had no obligation to compel another member of the withdrawing firm to represent him. State v. Bible, 175 Ariz. 549, 591 (1993) ("Although an indigent criminal defendant has a Sixth Amendment right to competent counsel, this right does not include counsel of choice.").
¶15 For the reasons set forth above, we grant review and deny relief.