Opinion
2 CA-CR 2013-0071-PR
05-03-2013
THE STATE OF ARIZONA, Respondent, v. MARK ALAN KEITZ, Petitioner.
Sheila Polk, Yavapai County Attorney By Kevin D. Schiff Prescott Attorneys for Respondent David Goldberg Fort Collins, CO Attorney for Petitioner
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Not for Publication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 YAVAPAI COUNTY
Cause No. V1300CR820060780
Honorable Warren R. Darrow, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
Sheila Polk, Yavapai County Attorney
By Kevin D. Schiff
Prescott
Attorneys for Respondent
David Goldberg Fort Collins, CO
Attorney for Petitioner
ESPINOSA, Judge. ¶1 Petitioner Mark Keitz challenges the trial court's denial of his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., in which he alleged trial counsel had rendered ineffective assistance. We grant review, and for the following reasons, deny relief. ¶2 Following a jury trial, Keitz was convicted of sale or transfer of a dangerous drug, possession for sale of a dangerous drug, possession of marijuana, possession of drug paraphernalia, and misconduct involving weapons. The trial court sentenced him to concurrent, mitigated prison terms, the longest of which were 6.5 years. We affirmed the convictions and sentences on appeal. State v. Keitz, No. 1 CA-CR 08-0807 (memorandum decision filed Jan. 26, 2010). In his petition for post-conviction relief, Keitz asserted trial counsel did not adequately prepare for trial, performed ineffectively during trial by "open[ing] the door" to the admission of evidence that would have been inadmissible as hearsay or improper evidence of other acts, and ineffectively advised him regarding the state's plea offer. ¶3 Finding Keitz had raised a colorable claim for relief on the issue related to his rejection of the plea offer, the trial court held an evidentiary hearing pursuant to Rule 32.8. The court summarily denied relief on his remaining claims. Keitz and his two trial attorneys testified at the hearing. The court subsequently issued its under advisement ruling, finding that although his attorneys' representation fell below an objective standard of reasonableness, Keitz had failed to establish that he had been prejudiced by their deficient performance. This petition for review followed. We will not disturb a trial court's denial of post-conviction relief "unless an abuse of discretion affirmatively appears." State v. Watton, 164 Ariz. 323, 325, 793 P.2d 80, 82 (1990). We find no such abuse here. ¶4 Keitz argues on review that the trial court erred in rejecting his claim of ineffective assistance of counsel regarding his decision to reject the state's plea offer. To show ineffective assistance of counsel, Keitz was required to establish both that counsel'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 (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). "To establish prejudice in the rejection of a plea offer, a defendant must show 'a reasonable probability that, absent the attorney's deficient advice, he would have accepted the . . . plea offer' and declined to go forward to trial." Id. ¶ 20, quoting People v. Curry, 687 N.E.2d 877, 888 (Ill. 1997) (omission in Donald). ¶5 Here, the trial court found that counsel had fallen below prevailing professional norms by failing to "provide meaningful analysis and advice" to help Keitz make an informed decision whether or not to accept the state's plea offer. However, it also found Keitz had failed to demonstrate resulting prejudice. Based on the evidence presented at the evidentiary hearing, the court determined, "The evidence in this matter indicated that Mr. Keitz maintained, and continues to maintain, his actual innocence and that he would not have been able, legitimately, to provide a factual basis for a guilty plea to the primary charges." The court also found, "As made apparent by the form of agreement offered to Mr. Keitz in this matter . . . , plea agreements in this jurisdiction usually require a defendant to provide the factual basis for the guilty plea." The court then stated, "In any event, the parties have not cited any excerpt from the transcript in which the State agreed that the attorneys could provide the factual basis or agreed it would have been acceptable for Mr. Keitz to enter an Alford or no contest plea." The court thus concluded Keitz was not prejudiced by rejecting the plea offer since he had failed to show "either that he would have been able to provide a factual basis and thus accept the actual plea offer extended to him by the State or that he would have been permitted to enter an Alford or no contest plea." ¶6 On review, Keitz argues that if counsel had competently advised him regarding the likelihood of success at trial and the possibility he might receive a longer sentence than the five years contemplated by the plea agreement, he would have provided a factual basis in order to accept the state's plea offer. He claims he rejected the plea offer based on counsel's "incompetent" advice, and asserts the trial court abused its discretion by finding he had failed to prove he "detrimentally" relied on that advice. To that end, he contends the court incorrectly determined he would have been unwilling to provide the requisite factual basis to plead guilty. Keitz asks that we remand "with directions that he be permitted to enter the plea agreement he rejected on the incompetent advi[c]e of his trial attorneys." ¶7 In its minute entry ruling, the trial court predicated its denial of relief on a number of factual findings. "In reviewing a decision on a hearing for post-conviction relief, we must 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." State v. Sasak, 178 Ariz. 182, 186, 871 P.2d 729, 733 (App. 1993). Keitz's testimony at the evidentiary hearing was equivocal at best, and seemed to suggest that the basis for the Rule 32 petition was his unhappiness with the sentences imposed based on "hindsight." Notably, there was substantial evidence to support the court's finding that, despite counsel's deficient conduct, Keitz would not have provided a factual basis to support the plea agreement that was offered to him. When "the trial court's ruling is based on substantial evidence, this court will affirm." Id. And, "[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). ¶8 Contrary to Keitz's assertion that the record "quite clearly indicates that if properly advised," he would have accepted the state's plea offer, it does not. Although Keitz did, in fact, testify he would have pled guilty to the sale of drugs in order to get the five-year sentence contemplated by the plea agreement, he repeatedly maintained his innocence at the evidentiary hearing and stated, for example, "[i]n retrospect," he "probably" would have told the court he had been selling methamphetamine in order to receive the benefit of the plea offer. Similarly, while stating he "would have signed a plea agreement" if his attorneys had told him there was a "high probability of being convicted," when asked if he would have "lied to the court to get the plea agreement," Keitz responded, "I had no idea that's what the plea agreement would be read out to be," and that he "d[id]n't know" if he would have provided the factual basis. And, notably, Keitz did not establish that the option to enter a no-contest plea was available. Accordingly, based on the trial court's factual determinations, to which we defer, Keitz did not sustain his burden of proving he would have provided a factual basis to support the guilty plea the state had offered. We thus conclude Keitz has not met his burden of demonstrating the court abused its discretion in rejecting his claim. ¶9 Although we grant the petition for review, relief is denied.
Keitz does not assert on review that the trial court erred in summarily denying relief on his other claims of ineffective assistance of counsel.
Although the trial court referred to the plea offer, it does not appear that agreement is part of the record before us. We generally presume a missing portion of the record supports the trial court's ruling. See State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162, 166 (1982).
North Carolina v. Alford, 400 U.S. 25 (1970).
It does not appear the trial court conducted a hearing to assure that Keitz understood the consequences of his decision to reject the plea offer. See State v. Donald, 198 Ariz. 406, ¶ 17, 10 P.3d 1193, 1200 (App. 2000).
See Ariz. R. Crim. P. 17.3, 26.2(d) (affirmative finding of factual basis for guilty plea required).
In the affidavit attached to his Rule 32 petition, Keitz refers to a three-year prison term contained in the "last plea offer," whereas his argument on review refers to a five-year term.
When asked if the 6.5-year sentence was a surprise based on anything his trial attorneys had told him, Keitz responded, "Well, not considering that [the sentence] could have been 16 years. Under the circumstances, I don't know, given the knowledge. In retrospect it's hard—you know. Hindsight." And, when asked: "And you agree that had you known the jury would have convicted, you would not have rejected the plea agreement?" Keitz responded, "Well no. I wouldn't have. But that's hindsight."
________________________
PHILIP G. ESPINOSA, Judge
CONCURRING: ___________________________
GARYE L. VÁSQUEZ, Presiding Judge
____________________
VIRGINIA C. KELLY, Judge