Opinion
2 CA-CR 2024-0064-PR
08-23-2024
THE STATE OF ARIZONA, Respondent, v. JOSEPH MARTIN MCGHEE, Petitioner.
William Ring, Coconino County Attorney By Michael S. Tunink, Deputy County Attorney, Flagstaff Counsel for Respondent Joseph Martin McGhee, Flagstaff In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Coconino County No. CR202100796 The Honorable Cathleen Brown Nichols, Judge
William Ring, Coconino County Attorney By Michael S. Tunink, Deputy County Attorney, Flagstaff Counsel for Respondent
Joseph Martin McGhee, Flagstaff In Propria Persona
Presiding Judge Sklar authored the decision of the Court, in which Vice Chief Judge Eppich and Judge Brearcliffe concurred.
MEMORANDUM DECISION
SKLAR, PRESIDING JUDGE
¶1 Joseph McGhee seeks review of the superior court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 33, 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). McGhee has not met his burden of establishing such abuse.
¶2 In March 2022, McGhee pled guilty to custodial interference and attempted stalking. He admitted to withholding his son from the physical custody of the child's mother, his former spouse, while they had joint legal custody, and to concealing a GPS tracking device in his child's stuffed animal to track his former spouse's movements, causing her to suffer emotional distress or reasonably fear for her physical safety. The superior court suspended the imposition of sentence and placed McGhee on probation for two years.
¶3 McGhee sought post-conviction relief, arguing in a pro se petition that his plea was invalid because the state had withheld exculpatory evidence, the superior court lacked jurisdiction over him because the stalking statute, A.R.S. § 13-2923, is unconstitutionally overbroad and vague, and recent amendments to A.R.S. § 1-602 significantly changed the law by creating "a new defense." He additionally claimed that no reasonable factfinder would have found him guilty of either offense. He argued he was "factually innocent" of attempted stalking because he was tracking his son, not his former spouse, and that conduct was therefore not prohibited pursuant to A.R.S. § 13-2923(D)(1)(b) and was "constitutionally protected." He also asserted there was "no credible evidence" his former spouse had suffered emotional distress or reasonably feared for her safety. As to his conviction of custodial interference, McGhee argued he was exempt from prosecution under A.R.S. § 13-1302(D) because he had filed an emergency custody petition and reasonably believed his child was in danger. He further maintained his conduct in keeping the child away from his former spouse was justified under A.R.S. § 13-417. Last, he contended his former spouse and an investigating detective were not credible.
¶4 The superior court summarily dismissed McGhee's petition. It concluded that McGhee had not explained in his petition how the undisclosed materials were exculpatory or useful for impeachment, instead incorporating by reference a civil complaint McGhee had filed. It additionally reasoned that the state's failure to disclose impeachment evidence did not violate due process and could not have affected the voluntariness of McGhee's guilty plea. The court refused to consider McGhee's claim that the stalking statute was void for vagueness because McGhee had not included it in his petition and instead had sought to incorporate the argument made in a civil complaint he attached to his petition. It further concluded that the recent changes to § 1-602 did not create a defense to McGhee's criminal conduct. Last, the court rejected McGhee's claims of innocence. It noted that his former spouse had stated she suffered emotional distress because of his conduct and that the exemption § 13-1302(D) did not apply because he had not filed an emergency petition before committing custodial interference. The court also determined McGhee had waived his justification and credibility claims by pleading guilty. This petition for review followed.
¶5 On review, McGhee generally repeats his claims and asserts his convictions should be set aside. We address his arguments in turn.
¶6 McGhee first argues the superior court erred by concluding he had not shown in his petition how the withheld evidence-several recordings of interviews with his former spouse-was exculpatory. But we need not reach this argument because, even assuming the recordings had some exculpatory or impeachment value, the state's failure to disclose them does not, standing alone, invalidate McGhee's guilty plea. See Rivera-Longoria v. Slayton, 228 Ariz. 156, ¶ 12 (2011) ("[D]efendants do not have a federal constitutional right to disclosure of information before entering into a plea bargain."); see also United States v. Ruiz, 536 U.S. 622, 630-33 (2002) (due process does not require prosecution to disclose impeachment evidence before plea agreement); United States v. Bagley, 473 U.S. 667, 676 (1985) (no constitutional distinction between impeachment and exculpatory evidence). And even had the state failed to meet its obligation under our criminal rules to disclose certain evidence when it extends a plea offer, see Ariz. R. Crim. P. 15.8(a), McGhee has not pointed to any evidence suggesting he would have forgone the guilty plea had the recordings been disclosed, see Ariz. R. Crim. P. 15.8(d). Indeed, in his affidavit in support of his petition, McGhee stated he had pled guilty to avoid having a pending criminal case against him while a child custody case was also pending.
McGhee asserts that he was unable to attach several of his exhibits to his petition due to size limitations on the e-filing system and thus could not comply with Rule 33.7(e), which requires defendants seeking post-conviction relief to "attach to the petition any affidavits, records, or other evidence currently available to the defendant supporting the allegations in the petition." Thus, he contends, under Rule 33.7(f), the superior court was not permitted to rule on his petition without first returning his petition "with an order describing how [the petition] failed to comply with Rule 33.7(e)." Any error was plainly harmless because, as we explain, McGhee's claims warranted summary rejection in any event.
McGhee relatedly claims his convictions are invalid because they resulted from "extrinsic fraud"-namely, the state's failure to disclose the recordings. He did not raise this argument in his petition below, and we decline to address it for the first time on review. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (court of appeals does not address issues raised for first time in petition for review); see also Ariz. R. Crim. P. 33.16(c)(2)(B) (petition for review must contain "issues the trial court decided that the defendant is presenting for appellate review").
¶7 McGhee next argues the superior court erred in rejecting his claim under Rule 33.1(g) that the recent addition of subsection (E) to § 1-602 constitutes a significant change in the law applicable to his case. He asserts § 1-602(E), which generally prohibits the state from "interfer[ing] with or usurp[ing] the fundamental right of parents to direct the upbringing, education, health care and mental health of their children," creates an affirmative defense to his crimes. But, even if we agreed with McGhee's interpretation, the statute was amended after he had committed his offenses and, thus, does not apply to his conduct. See 2022 Ariz. Sess. Laws, ch. 200, § 1; A.R.S. § 1-244 ("No statute is retroactive unless expressly declared therein.").
¶8 McGhee repeats his claims of actual innocence under Rule 33.1(h). To obtain relief under Rule 33.1(h), McGhee must "demonstrate[] by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would find the defendant guilty of the offense beyond a reasonable doubt."
We assume, without deciding, that a pleading defendant like McGhee may raise a claim under Rule 32.1(h) that contradicts his admissions at the change-of-plea hearing. See State v. Norgard, 92 Ariz. 313, 315 (1962) (characterizing as "frivolous" motion to withdraw from plea when "the only basis given . . . was that the defendant apparently changed his mind and claimed to be innocent"); State v. Quick, 177 Ariz. 314, 316 (App. 1993) (pleading defendant waives all non-jurisdictional defects unrelated to validity of plea); see also State v. Reed, 252 Ariz. 236, ¶ 16 (App. 2021) (concluding defendant entitled to relief under Rule 33.1(h) after admitting conduct not constituting an offense).
¶9 As to McGhee's conviction for attempted stalking, he first asserts that he was not tracking his former spouse's whereabouts but instead those of his son-conduct that does not constitute stalking under A.R.S. § 13-2923(D)(1)(b) (exempting from definition of "course of conduct" "constitutionally protected activity or other activity authorized by law, the other person, the other person's authorized representative or if the other person is a minor, the minor's parent or guardian"). But a jury readily could conclude that, by placing a GPS tracking device in his son's stuffed animal, he intended to track his former spouse while his son was in her custody. And, although McGhee reiterates his claim that there was no credible evidence his former spouse experienced emotional distress or fear, such evidence is not required to sustain his conviction for attempted stalking. His act of placing the GPS in his son's belongings was sufficient. See A.R.S. § 13-1001(A)(2) (attempt may be based on intentional act that is "any step in a course of conduct planned to culminate in commission of an offense"). Thus, McGhee has not met his burden under Rule 33.1(h).
We therefore need not reach his related argument that the superior court lacked jurisdiction over him because his conduct was not a crime.
¶10 As to his conviction for custodial interference, McGhee repeats his argument that § 13-1302(A)(3) does not apply to him because he had filed an emergency custody petition and reasonably believed his son was in danger, see § 13-1302(D). Section 13-1302(D) provides that a parent with joint custody does not commit custodial interference by withholding a child from the other parent if that parent "has filed an emergency petition regarding custodial rights with the superior court and received a hearing date from the court" and "has a good faith and reasonable belief that the child will be in immediate danger if the child is left with the other parent." See also § 13-1302(A)(3). But McGhee claims he filed his emergency petition on June 8, 2021, only after he had committed the offense on June 4. Section 13-1302(D) does not, as McGhee appears to believe, allow a parent to complete a criminal offense and then avoid liability for that offense by then seeking an emergency petition.
McGhee has abandoned his claim that his conduct was justified under § 13-417 and does not reassert his claim that the stalking statute is unconstitutionally vague.
¶11 McGhee has not demonstrated the superior court erred by summarily dismissing his petition for post-conviction relief. Although we grant review, we therefore deny relief.
We thus need not reach McGhee's argument that the Coconino County Attorney's Office should be disqualified from his case.