Opinion
2 CA-CR 2022-0142-PR
04-18-2023
The State of Arizona, Respondent, v. Luis Christopher Mendez, Petitioner.
Rachel Mitchell, Maricopa County Attorney By Faith C. Klepper, Deputy County Attorney, Phoenix Counsel for Respondent Ballecer & Segal LLP, Phoenix By Natalee Segal Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR2015004677001 The Honorable Geoffrey Fish, Judge REVIEW GRANTED; RELIEF GRANTED IN PART AND DENIED IN PART
Rachel Mitchell, Maricopa County Attorney
By Faith C. Klepper, Deputy County Attorney, Phoenix
Counsel for Respondent
Ballecer & Segal LLP, Phoenix
By Natalee Segal
Counsel for Petitioner
Presiding Judge Eckerstrom authored the decision of the Court, in which Chief Judge Vasquez concurred and Judge Cattani dissented.
MEMORANDUM DECISION
ECKERSTROM, PRESIDING JUDGE:
¶1 Luis Mendez seeks review of the trial court's ruling summarily dismissing his petition for post-conviction relief, filed pursuant to Rule 33, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). We grant relief in part and remand the case for an evidentiary hearing consistent with this decision, but otherwise deny relief.
¶2 In 2017, Mendez pled guilty to one count of possession or use of a narcotic drug. Pursuant to a plea agreement, he admitted two historical prior felony convictions for offenses he had committed in California. The trial court sentenced Mendez as a category three repetitive offender to a presumptive ten-year prison term, to be served concurrently with the sentence in another matter (the 2014 case).
The state originally alleged that Mendez had six historical prior felony convictions from California. That number was later amended to include eight prior convictions.
¶3 Mendez filed a post-conviction petition, claiming his admission to the two prior convictions was not knowing, voluntary and intelligent. He observed that the trial court had not provided a separate plea-type colloquy for the prior convictions, as required by Rule 17.6, Ariz. R. Crim. P., and asserted that trial counsel had been ineffective by advising him to admit the prior convictions without receiving or reviewing documentary evidence of the convictions or informing him he was entitled to a priors hearing. The court summarily dismissed Mendez's petition, "incorporat[ing]" the reasons set forth in the state's response to its ruling.
When a defendant has not admitted to his prior convictions while testifying in court, the trial court may only accept his admission to such priors after the procedures established in Rule 17, Ariz. R. Crim. P., have been followed. See Ariz. R. Crim. P. 17.6. "Rule 17 requires the judge to engage in a plea-type colloquy with the defendant to ensure that the admission [to one or more prior convictions] is voluntary and intelligent." State v. Morales, 215 Ariz. 59, ¶ 1 (2007). The purpose is "to ensure that a defendant voluntarily and intelligently waives the right to a trial on the issue of the prior conviction." Id. ¶ 11; see also Ariz. R. Crim. P. 17.3(a).
¶4 Therein, the state argued that it had previously disclosed evidence of Mendez's prior convictions, the trial court was not required to conduct a separate colloquy in addition to the one provided for Mendez's guilty plea, and the disclosed proof of the prior convictions defeated Mendez's claim of ineffective assistance of counsel. It attached documents it characterized as "copies of the certified documents of three Los Angeles County prior convictions as well as [Mendez]'s California DOC penitentiary packets." It stated it had "disclosed" the subject documents on July 22, 2015. It also attached a document entitled "Scottsdale Police Department Crime Laboratory Examination Report," which it maintained had been "completed" on February 22, 2016. That report constituted "a comparison" of Mendez's "prints" and those on the "previously disclosed" California packets. As previously noted, the court adopted the state's assertions in its order.
¶5 The trial court also concluded that Mendez had knowingly, intelligently and voluntarily admitted his prior felony convictions at the change-of-plea hearing. It noted he "was in the best position to be aware of any criminal history he had," and determined he had not sustained his claim of ineffective assistance of counsel. This petition for review followed.
At the change-of-plea hearing, Mendez acknowledged that he was pleading guilty with two prior felony convictions and that he was waiving the right to have "the jury make any determination as to any fact that may be used to aggravate or enhance [his] sentence." He also agreed with the factual basis his attorney provided for the two prior convictions.
¶6 On review, Mendez asserts that his plea was not voluntarily entered. He repeats his argument that the trial court was required to conduct a separate plea-type colloquy for the admission of his prior convictions. He specifically challenges the court's statement that he "was in the best position to be aware of any criminal history he had." He asserts that in so finding, the court not only improperly shifted the state's burden to him to show the absence of his prior convictions, but it misapplied Rule 17.6. He also reasserts he was not informed the state had the burden of proving his prior convictions or that he was entitled to contest their validity.
In his petition and reply below, Mendez asserted that if he had known the state did not have documentary evidence to prove the prior convictions or that the convictions may not have been valid, "he would not have admitted" them, while also stating, "he would have rejected the plea." In his affidavit submitted with his petition below, although he stated, "Had I known . . . that I could contest the prior convictions by a trial where the state had to prove [them], I would not have admitted the prior convictions in the plea," he did not say anything about rejecting the plea. In his petition for review, Mendez inaccurately states that in his affidavit, he "acknowledge[d] that had he understood the extent of his situation, he would have rejected the plea and forced the state to meet its burden in proving the priors."
¶7 Mendez further contends, as he did below, that his attorney was ineffective for advising him to admit his prior convictions without "obtaining or vetting the prior[s] packet." See State v. Banda, 232 Ariz. 582, ¶ 12 (App. 2013) (defendant may obtain post-conviction relief on basis that counsel's ineffective assistance led defendant to make an uninformed decision to accept or reject plea bargain, thereby making that decision involuntary). He adds that he would have been "better off pleading guilty to the charge and asking for a trial on the prior convictions." Mendez further maintains the trial court erred by dismissing his petition without conducting an evidentiary hearing. See State v. Amaral, 239 Ariz. 217, ¶¶ 10-12 (2016) (to be entitled to evidentiary hearing, defendant must make "colorable claim" by alleging "facts which, if true, would probably have changed" outcome of case).
In the appendix to his petition below, Mendez attached an affidavit by attorney Christopher Dupont opining that trial counsel had been ineffective. The state did not provide an affidavit by trial counsel.
¶8 Mendez points out, as he did below, that both defense counsel and the state signed a comprehensive pretrial statement on July 28, 2015. Therein, the parties specifically stated that the disclosure of the out-of-state priors was not yet complete. This contradicted the state's repeated argument in the post-conviction proceeding that it had disclosed the documents attached to its response below on July 22, 2015. However, other than attaching those documents as exhibits to its response, the state has not directed us to any location in the record before us establishing that they were, in fact, disclosed, and when. Mendez contends, therefore, that "[a] material issue of fact exists as to whether the prior packets were obtained and disclosed by the state prior to the plea," and whether they constituted sufficient evidence to support his prior convictions.
¶9 Mendez maintains that if he had understood that the state was required to prove the prior convictions, he "would have contested the priors instead of acting on his attorney's advice to take the plea." In fact, Mendez expressly stated in his affidavit that he "was never told [he] could contest a prior conviction by a trial on the priors."
¶10 A defendant's decision to plead guilty must be voluntary and intelligent. See Boykin v. Alabama, 395 U.S. 238, 242 (1969); see also Ariz. R. Crim. P. 17.1(b). A plea is involuntary "only where a defendant lacks information of 'true importance in the decision-making process.'" State v. Pac, 165 Ariz. 294, 295-96 (1990) (quoting State v. Crowder, 155 Ariz. 477, 482 (1987)). A plea will be enforced unless the missing information goes to the "'defendant's essential objective in making the agreement.'" Id. at 296 (quoting Crowder, 155 Ariz. at 481). Based on the record before us, we conclude the trial court correctly determined that it was not required to conduct a separate plea-type colloquy for the admission of the prior convictions. Because the right to a jury trial on the priors was reasonably implied by the colloquy given and the contents of the plea agreement, the court was not required to separately advise Mendez under Rule 17.6 that he had a right to a jury trial on the priors. State v. Barnes, 167 Ariz. 186, 188-90 (1991) (trial court not required to advise defendant of right to separate jury determination regarding existence of prior conviction when court accepts defendant's guilty plea to offense with prior felony conviction and advises defendant of right to jury trial).
We note that the version of Rule 17.6 in effect when the decision in Barnes was issued contained a comment making it applicable to defendants pleading guilty only to a prior offense before or after a trial on the current charge. See Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017); Barnes, 167 Ariz. at 189. That comment is not part of the current rule. See Ariz. R. Crim. P. 17.6.
¶11 However, we must take as true Mendez's allegation that he was not informed that the state had not disclosed evidence of his prior convictions when he pled guilty and that counsel had not reviewed that information. See State v. Speers, 238 Ariz. 423, ¶ 9 (App. 2015). On that basis, he was, at the very least, entitled to an evidentiary hearing to assess the accuracy of those claims and to determine whether counsel was ineffective. See Amaral, 239 Ariz. 217, ¶¶ 10-12. We thus remand this matter to the trial court for an evidentiary hearing to determine (1) if defense counsel failed to receive and review documentation of Mendez's prior convictions before advising him to admit those convictions as part of his guilty plea; and, (2) whether there was any weakness in that documentation such that the deficiency in failing to acquire and review the documents caused Mendez any prejudice.
¶12 In so doing, the trial court should clarify what information regarding Mendez's prior convictions was actually disclosed before he pled guilty. We acknowledge that, in its response to the petition for review, the state suggests that it disclosed the subject documents in the 2014 case, which is not before us on review. However, as we previously noted, those documents were not filed in the original proceeding here.
We note, however, that at the sentencing hearing, the trial court stated it did not "see anything about any priors being proved" at the jury trial in the 2014 case. In fact, in this court's ruling on appeal in the 2014 case, we noted that, "although the state had alleged that Mendez had two prior felony convictions, the state did not attempt to prove his prior convictions." State v. Mendez, No. 1 CA-CR 18-0485, ¶ 5 (Ariz. App. Jan. 9, 2020) (mem. decision).
¶13 And, although the state submitted the documents as exhibits in the Rule 33 proceeding in the trial court, there is nothing in the record showing that the court evaluated them. Because both of the prior convictions arose in another state, they may or may not align with comparable Arizona offenses. That determination requires a fact-based inquiry in the first instance, a finding best left to the discretion of the trial court. For all of these reasons, we decline the state's invitation to take judicial notice that the subject documents show matching prints and photographs such that Mendez could not establish prejudice. See Ariz. R. Evid. 201(b). Nor, in advance of the evidentiary hearing, do we have a factual basis to assess whether the state could have proved the prior convictions. Cf. State v. Carter, 216 Ariz. 286, ¶ 26 (App. 2007) (law does not require defendant arguing Rule 17 violation in connection with prior conviction to show absence of prior conviction). Similarly, in light of our ruling, we do not reach Mendez's claim of ineffective assistance of counsel, but instead leave that to the discretion of the court on remand.
We note, however, that we find unpersuasive the state's argument that Mendez's claim fails because he did not contest references to his prior convictions in the presentence report. State v. Gonzales, 233 Ariz. 455, ¶ 11 (App. 2013) ("unobjected-to presentence report showing a prior conviction to which the defendant stipulated without the benefit of a Rule 17.6 colloquy conclusively precludes prejudice and a remand under [Morales, 215 Ariz. 59]"). Here, although the presentence report referred to Mendez's "extensive criminal history dating back to 1984," it did not contain specific details regarding those convictions.
¶14 We grant review of Mendez's petition for review and grant relief in part. We remand the case to the trial court for an evidentiary hearing consistent with this decision, but otherwise deny relief.
CATTANI, Judge, dissenting:
¶15 I agree the superior court correctly rejected Mendez's claim that, in addition to the plea colloquy given, a separate, prior-conviction-specific colloquy was required. I disagree, however, with the Majority's conclusion that Mendez has raised a colorable claim of ineffective assistance of counsel.
¶16 In his petition for post-conviction relief, Mendez asserted that the State had not disclosed documents to support the out-of-state prior convictions alleged and that his trial counsel thus had no basis to assess (1) whether the State had or could acquire evidence of the priors or (2) whether any such evidence would be sufficient to prove the existence of the priors, link them to Mendez, and establish that they qualified for sentence enhancement purposes under Arizona law. He asserted that counsel performed deficiently by advising him to admit two prior convictions under those circumstances and that, if he had been properly advised, he would not have admitted the priors and would necessarily have received a shorter sentence because the State could not have proved them. Compare A.R.S. § 13-702(D), with A.R.S. § 13-703(C), (J).
¶17 In response, the State contended that it had, in fact, disclosed evidence of six California convictions. The State attached to its response copies of two certified California pen packs for "Mendez, Luiz" showing six convictions, including the two that he admitted here, along with a forensic report matching Mendez's known prints to the fingerprint cards attached to each of the California pen packs.
¶18 To state a claim of ineffective assistance of counsel, a defendant must show deficient performance by counsel and resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984). In the context of plea proceedings, the prejudice component requires the defendant to "show a reasonable probability that, 'but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" State v. Nunez-Diaz, 247 Ariz. 1, 5, ¶ 13 (2019) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Additionally, "it must 'have been rational under the circumstances' for a defendant to refuse a plea and go to trial." Id. (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)).
¶19 Here, assuming for the sake of argument that the State did not previously disclose evidence of priors and that trial counsel's performance was thus deficient, Mendez still needs to show prejudice. See id. Mendez now has the records the State contends substantiate the priors. To state a colorable claim of ineffective assistance, he must show that, notwithstanding those records, he would not have admitted the prior convictions and it would have been rational to decline to do so. Id. In my view, to do that, Mendez must point out some weakness in the documentation to explain why those documents either did not exist when he agreed to plead guilty or were insufficient to establish the existence of qualifying prior convictions. He has not done so. Nor has he provided any other plausible rationale for declining to admit the prior convictions.
¶20 Mendez's petition for review here, like his reply in superior court, includes only a one-sentence, conclusory argument on this issue: "Mendez asserts that the priors are insufficient to prove his identity and the other factors necessary to use the priors to enhance his sentence." He urged the superior court that "[t]hese discrepancies must be resolved in an evidentiary hearing." But what discrepancies? A defendant is entitled to an evidentiary hearing "to determine issues of material fact," Ariz. R. Crim. P. 33.13(a), but at least as to prejudice, Mendez has not raised any factual dispute. Mendez cannot meet his burden to show prejudice by "mere speculation." State v. Rosario, 195 Ariz. 264, 268, ¶ 23 (App. 1999).
¶21 Mendez's petition in superior court asserted that he would have been "better off pleading guilty to the charge and asking for a trial on the prior convictions" because he could have received a lesser sentence and, even if the State was able to prove the priors, he would have received the same sentence. But (among other provisions) the plea agreement required the State to dismiss a second felony charge against him and guaranteed that Mendez's sentence would be concurrent to the sentence imposed in a different case, benefits that Mendez might not have received absent the agreement. Likewise, because Mendez has offered no rebuttal to the now-disclosed documentation of priors, his assertion that he might have received a lesser sentence falls flat.
¶22 In sum, the superior court correctly dismissed Mendez's petition for post-conviction relief. As the Majority agrees, the court conducted an appropriate colloquy-satisfying the requirement as to both guilt and sentencing issues-before accepting Mendez's guilty plea. And, although the Majority concludes otherwise, Mendez's failure to point out any deficiencies in the now-disclosed records of the prior convictions he admitted means he failed to meet the prejudice prong of the Strickland analysis. Accordingly, he has failed to state a colorable claim of ineffective assistance of counsel. The superior court properly dismissed his petition, and I would likewise deny relief.