Opinion
No. 2 CA-CR 2014-0352-PR
12-05-2014
THE STATE OF ARIZONA, Respondent, v. SCOTT PAUL MARCONI, Petitioner.
COUNSEL Sheila Sullivan Polk, Yavapai County Attorney By Cynthia G. Spitler, Deputy County Attorney, Prescott Counsel for Respondent C. Kenneth Ray II, P.C., Prescott By C. Kenneth Ray II 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NOT FOR PUBLICATION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 Yavapai County
Nos. V1300CR201180091 and V1300CR201180265
The Honorable Tina R. Ainley, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Sheila Sullivan Polk, Yavapai County Attorney
By Cynthia G. Spitler, Deputy County Attorney, Prescott
Counsel for Respondent
C. Kenneth Ray II, P.C., Prescott
By C. Kenneth Ray II
Counsel for Petitioner
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 Scott Marconi seeks review of the trial court's orders summarily denying his petition for post-conviction relief and his motion for rehearing. We will not disturb those rulings unless the court clearly has abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We find no such abuse here.
¶2 After being charged with five drug-related offenses on February 25, 2011, Marconi entered into a written agreement (the "agreement") with the state, signed by Marconi, Detective B.R., and the county attorney, which provided Marconi would supply the state with certain information within ninety days of the agreement. The advisory form, which Marconi also signed, further directed him to "follow the directions/instructions of [his] control officer [B.R.] at all times," and provided he would "consent to a search at any time of [his] vehicle, person, residence, and all personal property." Upon successful completion of these terms, the agreement provided Marconi would be offered a probation-available plea agreement for possession of dangerous drugs.
¶3 In June 2011, after Marconi had failed to answer B.R.'s text messages or telephone calls, B.R. and another officer, J.S., went to Marconi's home and discovered drugs and drug paraphernalia inside. In an April 2012 guilty plea combining the February and June 2011 offenses, Marconi pled guilty to transportation of a dangerous drug for sale, possession of a dangerous drug for sale, and use of a wire device in a felony drug crime. The trial court sentenced him to concurrent terms of imprisonment, the longest of which is seven years.
B.R. had granted Marconi an extension to complete the terms of the agreement, which otherwise would have expired in May 2011.
¶4 Marconi filed a petition for post-conviction relief in December 2012, claiming his guilty plea was involuntary because the state had failed to abide by the terms of the agreement and to disclose material evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963). He asked that he be permitted to withdraw from the plea agreement and receive the benefit of the agreement regarding the February 2011 offenses, and that the June 2011 charges be dismissed, or alternatively, that those offenses proceed to trial.
In his petition below, Marconi seemed to suggest he was entitled to an evidentiary hearing. And, although he expressly asks for a hearing on review, he does not ask that the matter be set for trial, as he did below.
¶5 Marconi's Brady claim was based on the state's failure to notify him or his attorney that J.S. had been suspended in December 2011, and of "subsequent disciplinary proceedings suggesting complicity . . . at least in part . . . by B.R.," which resulted in J.S.'s termination from the sheriff's department in March 2012. Had Marconi known about J.S.'s disciplinary proceedings, he claimed, he would not have accepted the plea agreement and would have instead "litigate[d] the question of whether [Marconi] had . . . complied with the Agreement." In a declaration accompanying his supplemental Rule 32 petition, Marconi attested if he had known about J.S.'s disciplinary proceedings, he "would not have entered into the Plea Agreement" and further averred:
The state has conceded it did not disclose this information to Marconi or his attorney.
5. I am advised that my [t]rial attorney . . . was also not made aware of former Det. J.S.'s [sic] prior to the presentment to me of the Plea Agreement and, further, am advised that had [trial
counsel] been so advised, he would have recommended the question of my compliance with the Agreement I had with the State and law enforcement would have been litigated.
6. It is my position that I fully complied with all requirements of said Agreement and I would have consented, agreed, and directed my attorney to litigate the compliance issue as he would have recommended had either he or I been aware of former Det. J.S.'s disciplinary issues.
¶6 In its ruling denying Marconi's petition, the trial court found he had "fail[ed] to provide the Court with any facts related to the basis for the suspension and subsequent termination of [O]fficer J.S.," and therefore concluded Marconi had "failed to meet his burden of showing that the fact of the officer's discipline was either favorable to the accused or prejudicial to his decision." The court thus determined, "The simple fact that an officer who didn't testify in the evidentiary hearing [on Marconi's motion to suppress the evidence found at his home in June 2011] was disciplined and subsequently terminated does not, by itself, make the evidence the type required to be disclosed pursuant to Brady." The court added, "[t]he fact that [Marconi] now claims that he completed his cooperation agreement does not set forth a colorable claim in light of the evidence presented at the evidentiary hearing and his admission under the plea that he possessed methamphetamine for sale in violation of that very agreement."
¶7 After the trial court denied Marconi's Rule 32 petition, he filed a Motion to Reopen Post-Conviction Relief Proceedings or in the Alternative, for Rehearing, which the court treated as a motion for rehearing and summarily denied, noting Marconi "ha[d] not met his burden." In that motion, Marconi asked the court to permit him to submit "additional and recently-acquired evidence" related to a ruling in another matter involving J.S. which he maintained would support his Brady claim, and to consider the ruling in Milke v. Ryan, 711 F.3d 998 (9th Cir. 2013), which he asserted "discuss[es] in great detail the obligations of the State to comply with Brady." In summary, the court in the other matter granted post-conviction relief to the defendant based on J.S.'s conduct with the mother of the defendant's children, conduct which the court reasoned "would have formed a basis for the defense to challenge the credibility of [J.S. and B.R.], argue bias and motive to lie," and "would have been material to the defense case as a whole and likely affected the outcome of the trial."
Marconi asked the trial court to consider a compact disc "containing nearly 1,500 pages of documents and several hours of recorded testimony" from the other matter.
That case is readily distinguishable from the one before us for several reasons. Most notably, the mother of the defendant's children in that matter was a confidential informant with whom J.S. allegedly had an intimate relationship "at or near the time of [the defendant's] trial," leading to J.S.'s termination. In addition, J.S. was the "case" officer in the other matter, while B.R. was Marconi's "control" officer in this case. And, the other defendant had a jury trial, and his convictions "were based primarily on the testimony" of B.R. and J.S., while Marconi pled guilty, and J.S. did not testify at Marconi's suppression hearing.
¶8 On review, Marconi essentially raises the same arguments he did below, asserting that if the state had informed him of J.S.'s suspension, he would not have pled guilty. Pursuant to Brady, the state is required to disclose any evidence favorable to the accused and its failure to do so violates due process. State v. O'Dell, 202 Ariz. 453, ¶ 10, 46 P.3d 1074, 1078 (App. 2002). "[E]vidence is 'material' within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different." Cone v. Bell, 556 U.S. 449, 469-70 (2009).
¶9 As the trial court's ruling suggests, however, Marconi did not establish that evidence of J.S.'s conduct was material to his case or that it had any bearing on the voluntariness of his plea. Although Marconi suggests J.S.'s credibility was essential to his decision to plead guilty, the record shows that not only was B.R. his control officer, but he was the only officer who testified at the suppression hearing regarding the events in June 2011. Nor has Marconi provided any support for his allegation that B.R. was complicit in J.S.'s conduct. In addition, although the court considered the supplemental information Marconi attached to his motion for rehearing regarding J.S.'s role in a different case, it was not required to do so under Rule 32.9(a). In any event, Marconi did not explain how J.S.'s conduct in the other case related to his case or his decision to plead guilty, nor did he explain how that evidence would have been favorable to him under Brady.
Although B.R. testified at the suppression hearing that he previously had stated Marconi was being "managed" by himself and J.S., it is clear from the repeated references in the agreement solely to B.R., and the fact that B.R. extended the agreement, that he was Marconi's control officer. Nor has Marconi presented any evidence of material dealings he had with J.S.
¶10 Marconi's utter failure to connect J.S.'s conduct to his plea renders his argument that the state failed to comply with the agreement moot as it relates to J.S. Nor does Marconi meaningfully explain how the state purportedly violated the agreement which permitted the officers to search his house, and in so doing they found illegal drugs, in violation of the agreement.
¶11 Moreover, as a pleading defendant, Marconi waived all non-jurisdictional defects. State v. Flewellen, 127 Ariz. 342, 345, 621 P.2d 29, 32 (1980); see also State v. Reed, 121 Ariz. 547, 548, 592 P.2d 381, 382 (App. 1979) (state's failure to disclose alleged Brady evidence to grand jury is non-jurisdictional defect waived by defendant upon entering guilty plea). Accordingly, even assuming Marconi's claim were cognizable in light of United States v. Ruiz, 536 U.S. 622, 633 (2002) ("[T]he Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant."), because Marconi has not shown how information regarding J.S.'s disciplinary proceeding would have been material and exculpatory under Brady, the trial court correctly found he had failed to assert a colorable claim meriting post-conviction relief. We thus reject Marconi's claim he was entitled to an evidentiary hearing. See State v. Runningeagle, 176 Ariz. 59, 63, 859 P.2d 169, 173 (1993) (evidentiary hearing required only when petitioner states colorable claim).
In light of the court's correct finding that Marconi failed to show how J.S.'s conduct impacted him or his decision to plead guilty, Marconi's oblique reference to Milke, 711 F.3d 998, does not merit further discussion. For the same reason, we find unavailing Marconi's argument that, "in light of the material that was secured and produced in support of [Marconi's] claims in relation to Deputies J.S. and B.R.," the trial court improperly relied on State v. Acinelli, 191 Ariz. 66, 70-71, 952 P.2d 304, 308-09 (App. 1997) (trial court properly denied motion to compel officers' personnel files without some showing they contained exculpatory information).
--------
¶12 Therefore, we grant review but deny relief.