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State v. Palmisano

ARIZONA COURT OF APPEALS DIVISION ONE
Apr 1, 2021
No. 1 CA-CR 20-0396 PRPC (Ariz. Ct. App. Apr. 1, 2021)

Opinion

No. 1 CA-CR 20-0396 PRPC

04-01-2021

STATE OF ARIZONA, Respondent, v. JOSEPH PALMISANO, Petitioner.

COUNSEL Joseph P. Palmisano, San Luis 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
No. CR2013-417385-001
The Honorable Mark H. Brain, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Joseph P. Palmisano, San Luis
Petitioner

MEMORANDUM DECISION

Presiding Judge David B. Gass, Judge Michael J. Brown, and Judge David D. Weinzweig delivered the decision of the Court.

PER CURIAM:

¶1 Joseph Palmisano petitions this court for review from the dismissal of his petition for post-conviction relief filed under Rule 33.1 of the Arizona Rules of Criminal Procedure. We have considered the petition for review and, for the reasons stated, grant review and deny relief.

¶2 Under an agreement with the State, Palmisano pled guilty to aggravated assault and kidnapping. The plea agreement provided Palmisano would be sentenced to a prison term not to exceed five years for the assault conviction and be placed on probation for the kidnapping conviction after his release from prison. The assault conviction, a class 3 felony, carried a minimum prison sentence of two and one-half years, a presumptive sentence of three and one-half years, and a maximum sentence of seven years. A.R.S. § 13-702.D. Palmisano stipulated to the existence of several statutory aggravating circumstances—which exposed him to a greater-than-presumptive term. See State v. Martinez, 210 Ariz. 578, 584-85, ¶¶ 21, 26 (2005).

¶3 The day before the sentencing hearing, the State filed a "supplement" in which it alleged additional aggravating circumstances and asked the superior court to sentence Palmisano to the maximum prison term permitted by the plea agreement. After weighing the aggravating and mitigating circumstances, the court sentenced Palmisano to the stipulated maximum of five years' imprisonment for the assault, to be followed by a five-year period of probation for the kidnapping.

¶4 Palmisano timely filed a notice requesting post-conviction relief, and the superior court appointed counsel to represent him. After Palmisano's appointed attorney filed a notice of completion declaring he could find no colorable claim to pursue, Palmisano filed a petition for post-conviction relief in propria persona. The superior court summarily dismissed the petition, occasioning our review. This court has jurisdiction under article VI, section 9, of the Arizona Constitution, A.R.S. § 13-4031, and Ariz.

R. Crim. P. 33.1(a). We will not disturb the superior court's decision absent an abuse of discretion. State v. Roseberry, 237 Ariz. 507, 508, ¶ 7 (2015).

¶5 Palmisano seeks post-conviction relief on the ground that his sentencing attorney provided ineffective assistance. See Ariz. R. Crim. P. 33.1(a). A defendant presents a colorable claim of constitutionally ineffective assistance of counsel by showing "both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, 567, ¶ 21 (2006). To establish prejudice, a defendant must demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 694 (1984).

¶6 Here, Palmisano contends he should be resentenced because his attorney's incompetence resulted in him receiving a harsher sentence than would otherwise have occurred. Palmisano asserts the State committed prosecutorial misconduct and breached the spirit of the plea agreement when it filed its sentencing supplement, which falsely alleged Palmisano had committed other bad acts. Palmisano argues the superior court likely considered the supplement to Palmisano's detriment because his attorney failed to adequately object to it.

¶7 The superior court dismissed Palmisano's petition after concluding his attorney acted reasonably and Palmisano suffered no prejudice. The court emphasized it had not considered the alleged other bad acts in determining the proper sentence. The superior court's decision shows no abuse of discretion.

¶8 Though Palmisano and the State stipulated in the plea agreement to the existence of several statutory aggravating factors, they did not agree the State would refrain from asking the court to consider additional aggravating circumstances. This is not a situation, therefore, where Palmisano is entitled to be resentenced because the State breached an explicit or implicit agreement to make no sentencing recommendation. See State v. Ross, 166 Ariz. 579, 584 (App. 1990). Additionally, the State did not breach an explicit or implicit agreement to present no evidence or argument in aggravation. See State v. Davis, 123 Ariz. 564, 568 (App. 1979).

¶9 Palmisano also has not shown deficient representation. His attorney objected to the State's allegation of prior bad acts, though perhaps not as forcefully as Palmisano might have wished. And the superior court

accepted Palmisano's attorney's argument it should "give . . . absolutely no weight" to the allegations because they were not proven by a preponderance of the evidence.

¶10 Palmisano's argument that the court could not help but be influenced by the false allegations is not persuasive. As Palmisano acknowledges, judges are presumed to act without bias. See State v. Henry, 189 Ariz. 542, 546 (1997). Palmisano does not overcome that presumption. And the fact the superior court was cordial and sympathetic toward Palmisano during a settlement conference before Palmisano decided to change his plea, does not demonstrate it would likely have imposed a more lenient sentence but for the failure of Palmisano's lawyer to attack the State's supplement more forcefully.

¶11 For the foregoing reasons, we grant review but deny relief.


Summaries of

State v. Palmisano

ARIZONA COURT OF APPEALS DIVISION ONE
Apr 1, 2021
No. 1 CA-CR 20-0396 PRPC (Ariz. Ct. App. Apr. 1, 2021)
Case details for

State v. Palmisano

Case Details

Full title:STATE OF ARIZONA, Respondent, v. JOSEPH PALMISANO, Petitioner.

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Apr 1, 2021

Citations

No. 1 CA-CR 20-0396 PRPC (Ariz. Ct. App. Apr. 1, 2021)