Opinion
2 CA-CR 2024-0043-PR
08-26-2024
The State of Arizona, Respondent, v. Eric Bran Ibarra, Petitioner.
Jon R. Smith, Yuma County Attorney By Charles Platt, Deputy County Attorney, Yuma Counsel for Respondent Elizabeth M. Brown, Phoenix Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Yuma County No. S1400CR201701000 The Honorable David M. Haws, Judge
Jon R. Smith, Yuma County Attorney By Charles Platt, Deputy County Attorney, Yuma Counsel for Respondent
Elizabeth M. Brown, Phoenix Counsel for Petitioner
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Gard and Chief Judge Staring concurred.
MEMORANDUM DECISION
ECKERSTROM, JUDGE
¶1 Eric Ibarra seeks review of the trial court's ruling dismissing, after an evidentiary hearing, his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Martinez, 226 Ariz. 464, ¶ 6 (App. 2011). Ibarra has not met his burden of establishing such abuse here.
¶2 After a jury trial, Ibarra was convicted of assault, resisting arrest, and weapons misconduct for possessing a firearm while being a prohibited possessor. The convictions were based on a domestic-violence incident between Ibarra and his wife, after which officers located a loaded gun in Ibarra's bedroom. Ibarra, a prohibited possessor, claimed the gun belonged to his son. The trial court imposed jail terms for resisting arrest and assault and a concurrent, ten-year prison term for weapons misconduct. This court affirmed his convictions and sentences on appeal. State v. Ibarra, No. 1 CA-CR 18-0767 (Ariz. App. June 4, 2020) (mem. decision).
¶3 Ibarra sought post-conviction relief, arguing, in part, that trial counsel had been ineffective by failing to adequately advise him of the consequences of going to trial rather than accepting a plea offer, including by "mistakenly advis[ing]" him regarding the law of constructive possession and not advising him about the potential prison term if convicted at trial. The trial court summarily dismissed the petition. This court, however, granted partial relief on review. State v. Ibarra, No. 2 CA-CR 2023-0104-PR (Ariz. App. June 9, 2023) (mem. decision). We determined Ibarra was entitled to an evidentiary hearing on his claim that "trial counsel was ineffective in failing to adequately advise him about the plea offer." Id. ¶¶ 5, 9.
¶4 In November 2023, the trial court conducted an evidentiary hearing, at which both Ibarra and trial counsel testified. The following month, the court issued its under-advisement ruling, denying Ibarra's petition. The court identified several discrepancies between Ibarra's and trial counsel's testimony and affidavit. Specifically, Ibarra testified that trial counsel had not reviewed the plea agreement with him, had not discussed the consequences if convicted at trial, and had not explained the principle of constructive possession, which, if explained, would have led him to accept the plea agreement. By contrast, trial counsel avowed that he had "consistently and repeatedly encouraged [Ibarra] to accept the state's plea offer" and that both he and the prosecutor had explained to Ibarra the possible prison sentence if convicted at trial. The court noted a Donald hearing was not held and although there was a settlement conference, that proceeding was not recorded.
A Donald hearing is a pretrial hearing where the trial court informs a defendant "of any outstanding plea offer and the consequences of conviction so that a record of the defendant's rejection of the plea offer can be made to guard against any 'late, frivolous, or fabricated claims' of ineffective assistance of counsel 'after a trial leading to conviction with resulting harsh consequences.'" State v. Mendoza, 248 Ariz. 6, ¶ 18 (App. 2019) (quoting Missouri v. Frye, 566 U.S. 134, 146 (2012)); see also State v. Donald, 198 Ariz. 406, ¶¶ 16-18 (App. 2000).
¶5 The trial court found Ibarra's testimony and affidavit to be "self-serving, contradicted by other evidence and not credible." The court further found that the "misunderstanding of the concept of constructive possession is not what motivated him to insist on a jury trial" but, rather, Ibarra "was convinced that he would be found not guilty." The court also found that trial counsel had "diligently tried to persuade [Ibarra] to accept the State's plea offer because in his professional opinion it was in [Ibarra's] best interests." Thus, according to the court, trial counsel "was effective in his representation." This petition for review followed.
¶6 On review, Ibarra repeats his claim of ineffective assistance, maintaining that trial counsel "failed to review the plea agreement in detail" and "failed to explain basic information about the case such that [Ibarra] could make an informed decision regarding the plea." To prevail on a 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)). "The scrutiny of counsel's performance must be highly deferential and '[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight.'" State v. Bigger, 251 Ariz. 402, ¶ 11 (2021) (quoting Strickland, 466 U.S. at 689). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." Bennett, 213 Ariz. 562, ¶ 21.
¶7 Ibarra first seems to challenge the lack of a Donald hearing. He maintains that "a Donald hearing was never held and it is clear [Ibarra] did not understand the consequences of his decision to reject the plea." And Ibarra faults trial counsel for not ensuring that he "fully understood the gravity of the case against him." We agree that a Donald hearing would have ensured a more complete record. See State v. Mendoza, 248 Ariz. 6, ¶ 18 (App. 2019). But the lack of a hearing does not entitle Ibarra to relief on his ineffective-assistance claim. See id. (Donald hearing helps guard against future claims of ineffective assistance). Notably, trial counsel testified as to the details of the settlement conference, which he said was similar to a Donald hearing insofar as the prosecutor discussed the charges, the sentences, and the strengths of the state's case and he "argued the nature of the evidence, from the Defense point of view." See id.
¶8 The remainder of Ibarra's argument can be summarized as a credibility challenge. He maintains that trial counsel "demonstrated a lack of knowledge of the basic facts of this case," while his own "narrative has remained consistent" throughout the proceedings. Pointing out that counsel "repeatedly relied on uncertain language" at the evidentiary hearing, such as, "I think," and "as far as I can recall," Ibarra maintains that trial counsel "lacked credibility."
¶9 But, as Ibarra acknowledges, credibility determinations are reserved for the trial court. See State v. Fritz, 157 Ariz. 139, 141 (App. 1988); see also In re Pima Cnty. Juv. Action No. 63212- 2, 129 Ariz. 371, 375 (1981) ("One of the most important principles in our judicial system is the deference given to the finder of fact who hears the live testimony of witnesses because of his opportunity to judge the credibility of those witnesses." (quoting Louis v. Blackburn, 630 F.2d 1105, 1109 (5th Cir. 1980))). Moreover, the trial court resolves any conflicts in the evidence. State v. Alvarado, 158 Ariz. 89, 92 (App. 1988). Our review is limited to a determination of whether the trial court's factual findings are clearly erroneous and whether its ruling is based on substantial evidence. State v. Sasak, 178 Ariz. 182, 186 (App. 1993).
¶10 Here, contrary to Ibarra's assertion otherwise, trial counsel avowed that he had discussed the charges and the potential sentences with Ibarra multiple times. The record shows trial counsel received a plea agreement, which he showed to Ibarra in January 2018. Trial counsel strongly encouraged Ibarra to accept the plea. In February 2018, trial counsel requested a settlement conference, again hoping that Ibarra would accept the plea. After that conference, however, trial counsel reported that the parties were "at loggerheads" and requested a trial date. According to trial counsel, Ibarra did not want to accept a plea because he was convinced he would be acquitted at trial. Trial counsel explained that Ibarra was "fairly confident at the get-go" that the victim, his wife, would not appear at trial. They also planned for Ibarra's son to testify-which he did-that the gun was his and that he had put it in the bedroom without Ibarra's knowledge.
Ibarra's wife did not appear at trial, and, upon the state's motion, the court dismissed several of the charges pertaining to her.
¶11 Moreover, on the first day of trial, when discussing the final jury instructions, trial counsel noted, "I think this is all a constructive possession sort of case." This further undercuts Ibarra's argument that he did not know about constructive possession and that if he had, he would have accepted the plea. Because the trial court's factual findings are not clearly erroneous and its ruling is based on substantial evidence, no abuse of discretion occurred. See Sasak, 178 Ariz. at 186.
¶12 Accordingly, we grant review but deny relief.