Opinion
No. 1 CA-CR 18-0731 PRPC
02-19-2019
STATE OF ARIZONA, Respondent, v. COLE NEUFELD, Petitioner.
COUNSEL Yavapai County Attorney's Office, Prescott By Michael P. McGill Counsel for Respondent Craig Williams, Prescott Valley Counsel for Petitioner
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Petition for Review from the Superior Court in Yavapai County
No. P1300CR201600689
The Honorable Jeffrey G. Paupore, Judge Pro Tem
REVIEW GRANTED; RELIEF DENIED
COUNSEL Yavapai County Attorney's Office, Prescott
By Michael P. McGill
Counsel for Respondent Craig Williams, Prescott Valley
Counsel for Petitioner
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge James B. Morse Jr. and Judge Peter B. Swann joined. THOMPSON, Judge:
¶1 Cole Neufeld petitions this court for review from the dismissal of his of-right petition for post-conviction relief (PCR) pursuant to Arizona Rule of Criminal Procedure 32.1. We have considered the petition for review and, for the reasons stated, grant review and deny relief.
¶2 Neufeld pleaded guilty to molestation of a child and five other counts of attempted molestation of a child. He was sentenced to twenty years' imprisonment with a subsequent period of probation.
¶3 In his petition for post-conviction relief, Neufeld argued two errors were committed. First, the court failed to inform him of the specific constitutional rights he was waiving when he pleaded guilty. Second, he claimed his counsel was ineffective because his attorney failed to effectively present mitigation during sentencing. The court reviewing the petition denied both claims for relief. In his petition for review, Neufeld raises the same two claims.
¶4 We will not disturb a superior court's ruling on a petition for post-conviction relief unless the court abused its discretion. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). The petitioner has the burden to show the court abused its discretion. See State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011). Here, we find no abuse of discretion.
I. Voluntariness of Guilty Plea
¶5 Before he pleaded guilty, the court had the following exchange with Neufeld:
COURT: Each page [of the plea agreement] has initials on the lower right-hand corner.
NEUFELD: Yes, your Honor.
COURT: Are those your initials?
NEUFELD: Yes, your Honor.
COURT: That tells me that you read this plea agreement from cover to cover. Is that true?
NEUFELD: Yes, your Honor.
COURT: Did your attorney explain it to you?In his petition for review, he argues this colloquy was deficient because the court failed to orally inform him of his right to a jury trial, right against self-incrimination, right to confront witnesses, and that a plea would waive those rights.
NEUFELD: Yes, your Honor.
COURT: Do you understand the plea?
NEUFELD: Yes.
COURT: Do you know the constitutional rights you give up by pleading guilty?
NEUFELD: Yes, your Honor.
COURT: Do you have any questions regarding your rights?
NEUFELD: No, your Honor.
¶6 We disagree. The court's failure to orally specify the constitutional rights waived by pleading guilty does not invalidate the plea. State v. Tiznado, 112 Ariz. 156, 157 (1975). Considering the entire record, Neufeld entered the plea knowingly, voluntarily, and intelligently. The written plea agreement stated that pleading guilty would waive those constitutional rights. Neufeld initialed that provision; he confirmed that to the court. He read the provision, and his attorney explained it to him. Neufeld also specifically told the court he understood his constitutional rights and had no questions. Further, his attorney at the time of the plea did not raise any issues regarding the voluntariness of the plea. The superior court did not abuse its discretion in finding Neufeld knowingly and voluntarily waived his constitutional rights.
II. Ineffectiveness of counsel
¶7 Neufeld argues his counsel should have arranged for his mother to speak at sentencing, gathered updated letters of support, and presented other sentences received by similarly-situated defendants.
¶8 To establish ineffectiveness of counsel, Neufeld's counsel must have performed deficiently and the deficient performance must have prejudiced Neufeld. Strickland v. Washington, 466 U.S. 668, 687 (1984). Prejudice occurs if there is a reasonable probability that, but for his attorney's unprofessional errors, results of the proceeding would have been different. State v. Jaramillo, 152 Ariz. 394, 397 (1987).
¶9 First, his counsel did not perform deficiently. In a memorandum filed before sentencing, his counsel recommended the minimum sentence Neufeld could have received. She cited seven mitigating factors: his age at the time of the offenses, acceptance of responsibility, his remorse, his desire for treatment, his physical health, his educational pursuits, and his community support. His attorney attached twenty-three additional documents supporting those mitigating factors.
¶10 Second, even if we found deficient performance, Neufeld cannot establish prejudice. It is impossible to conclude that a more robust presentation of mitigation would have reduced the length of his sentence. We find no abuse of discretion.
¶11 We grant review and deny relief.