Opinion
No. 2 CA-CR 2017-0345-PR
03-20-2018
THE STATE OF ARIZONA, Respondent, v. CONRAD LEON, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Jeffrey R. Duvendack, Deputy County Attorney, Phoenix Counsel for Respondent Conrad Leon, San Luis In Propria Persona
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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Maricopa County
No. CR2013454988001SE
The Honorable Peter C. Reinstein, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL William G. Montgomery, Maricopa County Attorney
By Jeffrey R. Duvendack, Deputy County Attorney, Phoenix
Counsel for Respondent Conrad Leon, San Luis
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 Conrad Leon seeks review of the trial court's order dismissing his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007). Leon has shown no such abuse here.
Although Leon states the trial court summarily dismissed his Rule 32 petition, the record shows the court conducted an evidentiary hearing.
¶2 Pursuant to a plea agreement, Leon was convicted of armed robbery and possession or use of narcotics. The trial court sentenced him to an aggravated 6.5-year prison term to be followed by a three-year term of probation. Leon then sought post-conviction relief, arguing his 6.5-year sentence for armed robbery should be reduced to five years on the ground that the trial court "participated in the plea agreement negotiations . . . to a significant degree that caused Leon to believe he would be sentenced to five years in prison." Relying on State v. Jordan, 137 Ariz. 504, 508-09 (1983), and Rule 17.4(a), Ariz. R. Crim. P., Leon also seemed to argue the court was prohibited from participating in any plea negotiations.
¶3 Leon attached to his petition below the unsworn declaration of trial counsel, who stated that during a recess in the February 9, 2015 settlement conference he had an off-the-record conversation with the trial court, which Leon "could not hear." Counsel reported the judge "stated he would be inclined to sentence [Leon] to five years in prison if he were to enter into the plea agreement," a statement counsel indicated he then "conveyed" to Leon. In his own affidavit, also filed with the petition below, Leon attested he had overheard the court tell his attorney "he would sentence [Leon] to five years in prison" if he accepted the plea agreement. Leon also attested that "[a]fter the conversation," counsel "returned to [Leon]" and explained that the court "would be inclined to sentence [him] to five years in prison if [he] accepted the plea agreement," but further stated counsel also told him, "'The judge stated to [counsel] that no matter what happens, [Leon] will not get [] more than five years, but that is between [counsel, Leon] and the judge.'" Leon attested he thus "felt compelled to sign the plea agreement" and to do "whatever they told [him] to do."
¶4 At the February 2015 settlement conference, the parties expressly agreed the judge could participate in the conference "notwithstanding the fact" that he would be the trial judge. During the conference, the judge asked Leon if he wanted the prosecutor to seek approval from his supervisor to offer a plea agreement, and Leon responded, "Yes." After the prosecutor did so, the judge explained the sentencing range in the plea agreement, including that Leon would be sentenced to "not less than 5 years" but up to 12.5 years for armed robbery. Leon acknowledged no one had forced him to plead guilty and no one had made any promises to him "outside of the [plea] agreement." Additionally, Leon told the judge he had read the plea agreement, had reviewed it with his attorney and understood it, and added that pleading guilty "ma[de] sense" to him.
At sentencing, Leon told the trial court, "I trust whatever [sentence] that you feel that you must give me . . . ."
¶5 In his pro se petition for review, Leon reasserts that the trial court participated in the plea negotiations "to a significant degree," causing him to believe he would receive a five-year sentence and thus "coerc[ing]" him to plead guilty. He also states the court told him he would receive a sixty-six year sentence if he did not enter a guilty plea, a representation the court questioned at the Rule 32 evidentiary hearing and which the record does not appear to support. Also at the evidentiary hearing, Rule 32 counsel acknowledged that the trial court had stated it had an "inclination" to give Leon a five-year sentence, but noted that the court did not say "definitively" that it was going to impose such a sentence, even though Leon "took it" as a promise. Leon asks that we either set aside the plea agreement or resentence him to a five-year term of imprisonment.
Although Leon requested a five-year sentence in his petition below, he did not ask that the trial court set aside the plea agreement.
¶6 Following the evidentiary hearing, the trial court, which also presided over the change-of-plea proceedings below, identified and addressed Leon's claims, and resolved them correctly in a manner permitting this court to review and determine the propriety of that order. See State v. Whipple, 177 Ariz. 272, 274 (App. 1993). No purpose would be served by restating the trial court's ruling in its entirety here. See id. Rather, we adopt it.
¶7 Additionally, relying on Jordan and Rule 17.4(a), Leon reasserts the trial court was prohibited from participating in plea negotiations, an issue he correctly notes the court did not address in its ruling below. 137 Ariz. at 508-09 (based on former version of Rule 17.4(a), trial court prohibited from participating in plea negotiations). Notably, however, the supreme court amended Rule 17.4(a) to permit judicial participation in plea negotiations well before Leon committed the instant offenses. Accordingly, although the court did not specifically address this issue, we nonetheless find it properly denied relief. Cf. State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015) ("We will affirm a trial court's decision if it is legally correct for any reason.").
The supreme court amended Rule 17.4(a), Ariz. R. Crim. P., in 1999, deleting, "The court shall not participate in any [plea negotiations]," and adding, in relevant part, that upon the "request of either party, or sua sponte, the court may, in its sole discretion, participate in settlement discussions by directing counsel having the authority to settle to participate in good faith discussion with the court regarding a non-trial or non-jury trial resolution which conforms to the interests of justice." 193 Ariz. LVI (1999). More recently, the supreme court amended Rule 17.4(a)(2) to read, in part, "At either party's request or on its own, a court may order counsel with settlement authority to participate in good faith discussions to resolve the case in a manner that serves the interests of justice. The assigned trial judge may participate in this discussion only if the parties consent." Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017). --------
¶8 We grant review but deny relief.