Opinion
No. 2 CA-CR 2013-0281-PR
01-07-2014
THE STATE OF ARIZONA, Respondent, v. NATHAN BANARD HORTON, Petitioner.
Barton & Storts, P.C., Tucson By Brick P. Storts, III Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Pima County
No. CR20100887001
The Honorable Casey F. McGinley, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
counsel
Barton & Storts, P.C., Tucson
By Brick P. Storts, III
Counsel for Petitioner
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Petitioner Nathan Horton seeks review of the trial court's denial of his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We grant review and, for the following reasons, deny relief.
¶2 After a jury trial, Horton was convicted of armed robbery, aggravated robbery, and aggravated assault, all dangerous nature offenses. The trial court sentenced him to concurrent, partially mitigated and presumptive prison sentences, the longest of which was eight years. We affirmed Horton's convictions and sentences on appeal. State v. Horton, No. 2 CA-CR 2011-0101 (memorandum decision filed Dec. 29, 2011).
As we noted in our memorandum decision on appeal, "[a]lthough the sentencing minute entry designates the offenses as non-dangerous, it is clear from the record . . . that they were dangerous." State v. Horton, No. 2 CA-CR 2011-0101, n.1 (memorandum decision filed Dec. 29, 2011).
¶3 In his petition for post-conviction relief, Horton asserted trial attorney Elizabeth Cirillo ineffectively advised him regarding the state's plea offer, which provided for a guilty plea to aggravated robbery, a class three, dangerous nature offense, with a sentencing range of five to fifteen years. Finding Horton had raised a colorable claim, the trial court held an evidentiary hearing pursuant to Rule 32.8. The court subsequently denied relief, and this petition for review followed. "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). We find no such abuse here.
¶4 To show ineffective assistance of counsel, Horton was required to establish both that Cirillo's performance fell below an objectively reasonable professional standard and that the deficient performance caused prejudice to the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985). "[A] defendant may state a claim for post-conviction relief on the basis that counsel's ineffective assistance led the defendant to make an uninformed decision to reject a plea bargain and proceed to trial," because counsel did not provide "information necessary to allow the [defendant] to make an informed decision whether to accept the plea." State v. Donald, 198 Ariz. 406, ¶¶ 14, 16, 10 P.3d 1193, 1200 (App. 2000).
¶5 At the evidentiary hearing, Cirillo testified that although she did not independently recall her conversation with Horton about the plea agreement, she did specifically recall having communicated the plea offer to him and having advised him of the sentencing range he would face at trial or if he pled guilty. When asked if she had explained "the ramifications of going to trial wherein [Horton] could be convicted and he would ultimately have now three dangerous nature felonies rather than the one from the plea," Cirillo responded, "I don't remember a specific conversation, but I can only assume I would have explained all the consequences of the plea versus trial." Cirillo further testified, based on her "typical practice," she would "have had the sentencing guidelines in front of [her] so that [she] would make sure that [she] wasn't deviating from them and explain what [Horton] would be facing after trial," and she also would have "explain[ed] what he was facing in the plea agreement, and . . . probably would have had a conversation about his chances at trial as well."
The trial court did not conduct a Donald hearing before trial to assure that Horton understood the consequences of his decision to reject the plea offer. See Donald, 198 Ariz. 406, ¶ 16, 10 P.3d at 1200.
¶6 Horton testified that, based on Cirillo's explanation of the plea agreement, he had thought accepting the state's plea offer "was pretty much the same thing . . . that [he] would be facing if [he] went to trial." However, in contrast to Cirillo's testimony, Horton testified she had not discussed the sentencing range in the plea agreement with him. He also stated he did not "recall" whether she had explained the sentencing range he would face at trial, or that he might have two additional dangerous nature convictions were he convicted at trial. He further testified he would have accepted the plea offer had Cirillo "made [him] aware of the full range of what [he was] facing upon conviction at trial versus the plea offer." And, when Horton was asked if the plea agreement was "ever presented . . . in such a way that [he was] in a position to make an informed decision as to whether or not [he] would accept the plea or reject it or [if he was] going to go to trial," Horton responded, "Yeah. It wasn't that much time in—from the explanation, it wasn't a big difference. So, you know, trial was right there. I just decided to rock and roll and let's go." Finally, Horton acknowledged that his memory of what had occurred "is kind of similar" to Cirillo's memory.
¶7 At the conclusion of the evidentiary hearing, the trial court summarized the issue before it as follows:
[T]he way I understand the original charges . . . the plea agreement was to count two of the original indictment [aggravated robbery] as a dangerous nature offense. If he took the plea, then the clear benefit to him would be, you don't have count one and count three, which are dangerous nature offenses, and all of the things that come along with dangerous offense convictions pas[t] the first, and then the other thing that comes with it is clearly he could not have been sentenced to eight years on count one because there would have been no count one. There would only have been count two under the plea.The prosecutor pointed out that, even under the terms of the plea agreement, the sentencing court nonetheless could have imposed an eight-year sentence, and added that the state would have "argued for more than the presumptive at sentencing under the plea." The court then explained it essentially wanted to know what Horton "knew when he said no to the plea," and noted "[t]he question is whether his rejection of the plea met the standards that were required."
¶8 In its written ruling denying the petition for postconviction relief, the trial court summarized Cirillo's and Horton's testimony, and then concluded,
This Court cannot, on this record, find that [Horton's] trial counsel fell below an objective standard of reasonableness. The evidence produced at the hearing on this matter established that [Horton] was informed of the plea offer, was likely informed of its ramifications, and that he knew the consequences of rejecting the offer. Although [Horton's] trial counsel could not recollect the precise conversation, she testified as to her usual practice and testified that she had no reason to believe she deviated from that practice. [Horton] did not establish that the information and advice offered by his trial counsel was incorrect or insufficient. In sum, considering the evidence in a manner which gives [Horton] the strongest benefit of the doubt, [Horton] remembers being told that the plea would result in a sentence very similar to what could occur at trial, which is in fact correct.
Counsel's performance did not fall below the prevailing professional norms.
[Horton] has not proven deficient performance on the part of his Trial Counsel. Because [Horton] has failed to meet the first prong of the test under Strickland, the court need not decide whether [Horton] was prejudiced by the actions of his counsel.
¶9 On review, Horton argues that if Cirillo had competently advised him that the state's plea offer would have "significantly reduced" his sentencing exposure, and would have exposed him to only one instead of three dangerous nature convictions, he would have accepted it. He maintains Cirillo's "simplistic disclosure of the fact of the plea offer, and that the plea did not offer anything significantly different than [he] could face if convicted after trial" constituted deficient advice upon which he had relied. He further maintains Cirillo's advice rendered his decision to reject the state's plea offer involuntary. Contending the court abused its discretion by denying his claim of ineffective assistance of counsel, he asks that we remand to determine "whether specific performance of the plea is the proper remedy."
In his petition for post-conviction relief, Horton argued he "would likely have received the presumptive sentence (7.5 years) under the plea, and/or possibly a partially mitigated sentence of between 5 and 7.5 years," while in his petition for review, he asserts "he likely would have received a mitigated 5 year sentence" had he accepted the plea offer.
¶10 In its ruling denying Horton's petition, the trial court predicated its denial of relief on certain factual findings. When the trial court has held an evidentiary hearing, we defer to its factual findings unless they are clearly erroneous. State v. Sasak, 178 Ariz. 182, 186, 871 P.2d 729, 733 (App. 1993). Thus, we "view the facts in the light most favorable to sustaining the lower court's ruling, and we must resolve all reasonable inferences against the defendant." Id.
¶11 Cirillo did not expressly recall the details of the conversation in which she had explained the plea offer to Horton. However, based on her testimony that she had in fact discussed the plea offer with him, including the applicable sentencing range and that it was her normal practice to explain to clients the consequences of accepting a guilty plea versus going to trial, something she "assume[d]" she had done here, there was substantial evidence to support the court's finding that Cirillo's performance was not deficient. When "the trial court's ruling is based on substantial evidence, this court will affirm." Id. And, although Horton argues that Cirillo's testimony of what she "probably would have done" is insufficient, we note that "[e]vidence is not insubstantial merely because testimony is conflicting or reasonable persons may draw different conclusions from the evidence." Id.; see also State v. Fritz, 157 Ariz. 139, 141, 755 P.2d 444, 446 (App. 1988) (trial court sole arbiter of witness credibility in post-conviction proceeding).
¶12 Accordingly, based on the trial court's factual determinations, to which we defer, Horton did not sustain his burden of proving Cirillo's advice was deficient. See Ariz. R. Crim. P. 32.8(c) (petitioner's burden to prove by preponderance of evidence all factual allegations raised in petition for post-conviction relief). We thus conclude Horton has not demonstrated the court abused its discretion in rejecting his claim.
¶13 Accordingly, although we grant the petition for review, relief is denied.