Opinion
No. 1 CA-CR 15-0749 PRPC
06-22-2017
STATE OF ARIZONA, Respondent, v. THOMAS PLATT, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Lisa Marie Martin Counsel for Respondent Thomas Platt, Eloy 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2013-428008-001
The Honorable Teresa A. Sanders, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Lisa Marie Martin
Counsel for Respondent
Thomas Platt, Eloy
Petitioner
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Jon W. Thompson joined.
McMURDIE, Judge:
¶1 Petitioner Thomas Platt seeks review of the trial court's dismissal of Platt's petition for post-conviction relief. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, 393, ¶ 4 (App. 2007). We have considered the petition for review and find Platt has not sustained his burden of establishing such abuse here. Therefore, we grant review but deny relief.
FACTS AND PROCEDURAL BACKGROUND
¶2 In 2013, Platt was charged with committing two counts of armed robbery and aggravated assault, unlawful flight from law enforcement, shoplifting, and misconduct involving weapons. Platt pled guilty to both counts of armed robbery as dangerous, non-repetitive offenses, and both counts of aggravated assault, unlawful flight from law enforcement, and misconduct involving weapons as non-dangerous, non-repetitive offenses. In 2014, the court sentenced Platt to an aggregate term of 14 years' imprisonment to be followed by a three-year probation tail.
¶3 Platt filed an "of right" notice for post-conviction relief within 90 days of sentencing and appointed counsel subsequently filed a petition for post-conviction relief. Appointed counsel moved to withdraw because Platt wished to raise additional issues that counsel did not deem cognizable. The court granted counsel's motion and Platt filed a pro se petition for post-conviction relief. Platt's petition argued: (1) illegal sentencing based on multiple punishment; (2) newly discovered evidence presumably based on Platt's allegation that there is video surveillance which he claims trial counsel did not obtain, as well as Platt's psychological status at the time of the commission of the crime and when Platt entered the plea; (3) ineffective assistance of counsel for: (a) failing to comply with Platt's requests; (b) failing to request, send, and evaluate evidence pertaining to a surveillance video and his medical records; (c) failing to adequately prepare and present
mitigation; (d) failing to follow the rules of procedure by failing to engage in a settlement conference; (e) allowing Platt to be subjected to an illegal sentence; and (f) advising Platt to lie on the record.
¶4 In its response, the State conceded, pursuant to Arizona Revised Statutes ("A.R.S.") section 13-116, the three-year grants of probation imposed for the two aggravated assault charges should be vacated. Ultimately, in September 2015, the trial court dismissed those two counts. Regarding all other claims raised by Platt, the court found that he had failed to raise a colorable claim for relief and therefore, summarily dismissed the remaining claims pursuant to Arizona Rule of Criminal Procedure 32.6(c).
¶5 More than a week following the dismissal of Platt's petition for post-conviction relief, Platt filed a motion requesting that the court order the Maricopa County Sheriff's Office ("MCSO") to release Platt's medical records to Platt to support his claim of ineffective assistance of trial counsel. The superior court, in a minute entry dated October 21, 2015, granted Platt's motion stating that Platt "may obtain copies of his own medical file." Approximately two months after his first motion, Platt filed another motion for his MCSO medical records and the court granted this request again, in a minute entry dated December 18, 2015, stating that Platt "may obtain a copy of his own medical file." Platt's petition for review followed.
DISCUSSION
¶6 Platt renews his claims from below in addition to alluding to a claim of ineffective assistance of post-conviction relief counsel. Platt argues that the trial court's dismissal of counts 3 and 4 was an inadequate remedy for his multiple punishment claim, and instead the trial court should have held an evidentiary hearing. In this case, a hearing was unnecessary because the issue was rendered moot when the trial court granted the State's motion to dismiss those counts.
¶7 Regarding Platt's claims of newly discovered evidence, "simply because [a] defendant presents the court with evidence for the first time does not mean that such evidence is 'newly discovered.'" State v. Mata, 185 Ariz. 319, 333 (1996). "Newly-discovered material facts alleged as grounds for post-conviction relief are facts which come to light after the trial and which could not have been discovered and produced at trial through reasonable diligence." State v. Dogan, 150 Ariz. 595, 600 (App. 1986) (emphasis added). The evidence which Platt argues is newly discovered, does not appear to be so. At sentencing, trial counsel acknowledged Platt's mental
health condition, that he took medication for the condition, and counsel confirmed his belief that Platt understood the proceedings. Trial counsel further assured the court Platt was not an appropriate defendant for Rule 11 proceedings.
¶8 At sentencing, Platt told the court that he was in a "substance induced psychoses" at the time of the armed robbery but also eloquently provided a factual basis for his admission of guilt while expressing remorse. On review, Platt refers to his mental state at the time he committed the offenses to which he pled guilty and during the time he entered the plea claiming that his plea was not knowing, intelligent, or voluntary, and further, that he lacked the requisite mental state to commit the crimes. The medical records he proffers on review were not submitted to the trial court. They were obtained, by motion, after the petition for post-conviction relief was denied.
¶9 A petition for review may not present issues not first presented to the trial court. Ariz. R. Crim. P. 32.9(c)(1)(ii); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980); State v. Wagstaff, 161 Ariz. 66, 71 (App. 1988); State v. Bortz, 169 Ariz. 575, 577-78 (App. 1991); see State v. Swoopes, 216 Ariz. 390, 403, ¶ 41 (App. 2007); State v. Smith, 184 Ariz. 456, 459 (1996) (there is no review for fundamental error in a post-conviction relief proceeding). The reviewing court will not consider issues not first presented to the trial court. Wagstaff, 161 Ariz. at 71. A petition for review may not present issues through mere incorporation by reference and must state "the issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review." Ariz. R. Crim. P. 32.9(c)(1)(ii); State v. Rodriguez, 227 Ariz. 58, 61, ¶ 12, n.4 (App. 2010) (declining to address argument not presented in petition).
¶10 Further, a plea agreement waives all non-jurisdictional defenses, errors, and defects which occurred prior to the plea. State v. Moreno, 134 Ariz. 199, 200 (App. 1982). The waiver of non-jurisdictional defects includes deprivations of constitutional rights, Tollett v. Henderson, 411 U.S. 258, 267 (1973), and all claims of ineffective assistance of counsel not directly related to the entry of the plea. State v. Quick, 177 Ariz. 314, 316 (App. 1994). "When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett, 411 U.S. at 267. Further, claims regarding the voluntariness of a plea are meritless if the record shows the trial court questioned the defendant in accordance with Boykin v. Alabama, 395 U.S. 238 (1969), and the defendant's
responses to those questions indicate the defendant entered the plea knowingly and voluntarily. State v. Hamilton, 142 Ariz. 91, 93 (1984). Statements to the court at a change of plea hearing regarding voluntariness are normally binding on the defendant. Id. The record on review indicates not only that the trial court was very thorough in explaining to Platt his rights, but also the terms and conditions of the plea agreement. As discussed above, Platt affirmatively indicated that he understood and agreed with the proceedings.
¶11 Finally, Platt's claim of ineffective assistance of both trial and post-conviction relief counsel are without merit. To state a colorable claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below objectively reasonable standards and that the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Nash, 143 Ariz. 392, 397 (1985). To show prejudice, a defendant must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. If a defendant fails to make a sufficient showing on either prong of the Strickland test, the trial court need not determine whether the defendant satisfied the other prong. State v. Salazar, 146 Ariz. 540, 541 (1985). An alleged failure to investigate does not meet the prejudice prong when defendant does not explain what evidence additional investigation would have discovered and how it might have changed the outcome. See Gallego v. McDaniel, 124 F.3d 1065, 1077 (9th Cir. 1997). Platt has failed to substantiate how either counsel's performance was deficient and Platt fails to demonstrate that but for either of their unprofessional errors, the proceedings would have resulted differently.
CONCLUSION
¶12 We grant review and deny relief.