Opinion
2 CA-CR 2023-0165-PR
12-18-2023
The State of Arizona, Respondent, v. Adrian Razo, Petitioner.
Kent P. Volkmer, Pinal County Attorney By Thomas C. McDermott, Deputy County Attorney, Florence Counsel for Respondent. Kate Milewski, Pinal County Public Defender By Kevin D. Heade, Deputy Public Defender, Florence Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pinal County No. S1100CR201902476 The Honorable Christopher J. O'Neil, Judge, The Honorable Jason R. Holmberg, Judge
COUNSEL
Kent P. Volkmer, Pinal County Attorney By Thomas C. McDermott, Deputy County Attorney, Florence Counsel for Respondent.
Kate Milewski, Pinal County Public Defender By Kevin D. Heade, Deputy Public Defender, Florence Counsel for Petitioner
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Kelly concurred.
MEMORANDUM DECISION
ECKERSTROM, Judge:
¶1 Petitioner Adrian Razo seeks review of the superior court's order 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. Mendoza, 249 Ariz. 180, ¶ 1 (App. 2020). Razo has not sustained his burden of establishing such abuse here.
¶2 In January 2021, without a plea offer from the state, Razo pled guilty to theft of a means of transportation, attempted armed robbery, discharging a firearm at a non-residential structure, weapons misconduct, possession of a dangerous drug, possession of drug paraphernalia, theft, shoplifting, and two counts of aggravated assault. The superior court sentenced him to time served on the shoplifting count and a combination of concurrent and consecutive prison terms totaling seventy-nine years on the remaining counts.
¶3 In April 2021, Razo filed a notice of post-conviction relief. He raised claims of ineffective assistance of counsel, arguing counsel had "failed to adequately investigate the law and facts of the case" before advising him to plead guilty, failed to argue for concurrent sentences, and failed to investigate and present mitigation evidence. The superior court summarily dismissed all but the final claim, for which it set an evidentiary hearing. After the evidentiary hearing, the court rejected Razo's claim. This petition for review followed.
Razo does not reassert his claim that counsel was ineffective "for failing to argue for concurrent sentences." We therefore do not address that claim. See Ariz. R. Crim. P. 33.16(c)(4); see also State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013).
¶4 On review, Razo maintains counsel "rendered ineffective assistance of counsel by failing to investigate, develop, and present accurate mitigation evidence at sentencing." To prevail on a claim of ineffective assistance, a petitioner is required to "demonstrate that counsel's conduct fell below an objective standard of reasonableness and that he was prejudiced thereby." State v. Bigger, 251 Ariz. 402, ¶ 8 (2021) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). A court must therefore consider, "in light of all the circumstances, whether counsel's performance was reasonable under prevailing professional norms." Id. (quoting State v. Pandeli, 242 Ariz. 175, ¶ 5 (2017)). "Representation falls below the prevailing professional norms of the legal community if counsel's performance was unreasonable under the circumstances." Id. ¶ 10 (quoting State v. Miller, 251 Ariz. 99, ¶ 10 (2021)). And because the superior court held an evidentiary hearing, our review of the court's factual findings "is limited to a determination of whether those findings are clearly erroneous"; we "view the facts in the light most favorable to sustaining the lower court's ruling, and we must resolve all reasonable inferences against the defendant." State v. Sasak, 178 Ariz. 182, 186 (App. 1993). When "the trial court's ruling is based on substantial evidence, this court will affirm." Id.
¶5 Razo contends the superior court "misapplied the law when it deemed . . . counsel's performance reasonable," asserting that the court "refused to consider" a doctor's diagnosis that Razo suffered from bipolar disorder because the diagnosis "was not in existence" at the time of sentencing. In context, however, the court's statement regarding the timing of the doctor's diagnosis was not a rejection of the evidence; rather, it was a finding relevant to determining whether counsel had diligently investigated and presented mitigating evidence at sentencing. Thus, we disagree that the court "refused" to credit the doctor's diagnosis.
¶6 To the extent the diagnosis constituted mitigation evidence that counsel should have found earlier and presented at sentencing, the court did not err in nevertheless concluding counsel had not been ineffective. The court acknowledged that counsel had been aware of a Rule 11 pre-screen report stating that Razo "continued to malinger" and had "opted to present himself in the most unfavorable light possible," something counsel testified at the evidentiary hearing had been "a difficult hurdle to overcome." But counsel nevertheless submitted medical records revealing that Razo had been taking medication to address his mental health issues. The sentencing memorandum outlined Razo's mental health conditions, disclosing that he had been diagnosed with "schizophrenia, bipolar disorder, and depression," and detailed the medications Razo had been taking to treat those conditions.
Although Razo argued at the evidentiary hearing that the "problem" with counsel's mitigation presentation was that there was no explanation of how the mental health issues related to the crime, counsel explained at sentencing how Razo's diagnosed mental health disorders affected him the night the crimes were committed. Regardless, "establishing a causal nexus between the mitigating evidence and the crime is not required." Pandeli, 242 Ariz. 175, ¶ 28.
¶7 As the record makes clear, the doctor's evaluation was more comprehensive. It more concretely and authoritatively explained the nature of Razo's mental health challenges. In a case where the superior court possessed such a wide range of discretion and where the defendant's mental illness was the best potential mitigating factor, it would have been a better practice for counsel to have secured the credibility of such an evaluation in advance of sentencing. But Razo was entitled to competent, not perfect, representation. See State v. Valdez, 160 Ariz. 9, 15 (1989). On the record before us, counsel raised, factually supported, and vigorously presented Razo's mental health challenges in both a sentencing memorandum and again in open court at sentencing. That record supports the court's finding that, although the doctor's explanation may have been better, "it does not mean that a less than ideal explanation by trial counsel was deficient."
¶8 Razo also contends counsel "admitted that his effort in this case did not rise to his own standard of care because he had not retained a mitigation specialist." But we can find no support in our jurisprudence for the notion that the failure to secure a mitigation specialist falls below the objective standard of reasonable care in a non-capital case. See Pandeli, 242 Ariz. 175, ¶ 60 ("[D]efendants do not have a stand-alone right to a mitigation specialist."). Having concluded above that the superior court did not err in finding that the mitigation presentation as a whole did not fall below constitutional standards, we do not address this question further.
Counsel testified that he viewed the cost of securing further mitigation as a constraint on his mitigation preparation. This testimony has no relevance to our analysis because we assess the effectiveness of counsel by an objective standard. See State v. Nunez-Diaz, 247 Ariz. 1, ¶ 10 (2019).
¶9 Razo also argues the superior court abused its discretion by summarily dismissing his claim of ineffective assistance of counsel regarding counsel's advice that he plead guilty without a plea agreement. The court is required to summarily dismiss a petition if the claim does not present "a material issue of fact or law that would entitle the defendant to relief." Ariz. R. Crim. P. 33.11(a). Generally, a defendant is entitled to an evidentiary hearing only if he has alleged facts that, if true, "would probably have changed" his verdicts. State v. Amaral, 239 Ariz. 217, ¶ 11 (2016). In the context of ineffective assistance in a plea decision, the petitioner must show that the outcome of the plea process would have been different with competent advice. Lafler v. Cooper, 566 U.S. 156, 163 (2012); see also State v. Donald, 198 Ariz. 406, ¶ 16 (App. 2000) ("petitioner must prove that the lawyer either (1) gave erroneous advice or (2) failed to give information necessary to allow the petitioner to make an informed decision"). Counsel is presumed to have acted properly unless a petitioner can show that counsel's decisions were not tactical "but, rather, revealed ineptitude, inexperience or lack of preparation." State v. Goswick, 142 Ariz. 582, 586 (1984). "Matters of trial strategy and tactics are committed to defense counsel's judgment" and cannot serve as the basis for a claim of ineffective assistance of counsel. State v. Beaty, 158 Ariz. 232, 250 (1988). In making this determination, the superior court could rely on its own experience and knowledge in evaluating the reasonableness of counsel's strategic choices. See Bigger, 251 Ariz. 402, ¶ 14.
¶10 Relying on an expert's declaration, Razo maintains that counsel's advice to plead guilty was "objectively unreasonable under prevailing professional norms." The expert opined that counsel "was unprepared to begin trial," "utterly unprepared to negotiate a plea," and "did no independent investigation of the facts." Razo, however, has failed to identify what, if anything, independent investigation of the facts would have uncovered. Notably, Razo admitted to police that he had committed the alleged crimes, and counsel opined that the state "had a strong case for the most serious charges" and "a good case for the other charges as well." And when counsel was retained, Razo had already rejected the state's plea offer; nothing in the record indicates the state was willing to re-engage in plea negotiations. In fact, counsel testified at the evidentiary hearing that he had asked the state "to do another settlement conference" and "tried to negotiate" but the state declined.
Razo filed several motions to suppress his statements, but the superior court did not rule on them before Razo pled guilty.
¶11 Razo identified no item of exculpatory evidence that would have been uncovered with further investigation. Razo also identified no plea outcome that would have changed with a different negotiation strategy. Therefore, the superior court did not err in finding that further investigation would not have created a better result in plea negotiations. See State v. Rosario, 195 Ariz. 264, ¶ 23 (App. 1999) (showing to support ineffective assistance of counsel "must be that of a provable reality, not mere speculation").
¶12 Nor can we say counsel's advice that Razo plead guilty lacked a reasoned basis. See State v. Smith, 244 Ariz. 482, ¶ 9 (App. 2018) (disagreements in trial strategy or tactics will not support ineffective assistance of counsel claim "as long as the challenged conduct could have some reasoned basis" (quoting State v. Meeker, 143 Ariz. 256, 260 (1984))). On his affidavit, Razo avowed counsel had "told [him] that by admitting guilt instead of trial, it would look better for the Judge," with a better "chance for less time" at sentencing. See State v. Nash, 143 Ariz. 392, 399 (1985) ("submission in the guilt phase is not per se ineffective assistance of counsel" because "[t]here may be valid tactical reasons . . . why counsel would want to submit a case to the trial court" including that "submission may corroborate a theory of contrition and cooperation for sentencing"). In criticizing the unorthodox decision to plead to the indictment in the absence of any concession by the state, Razo overlooks that, at that stage in the proceedings, pleading to the indictment or proceeding to a trial were his only feasible options. Indeed, the sentencing court stated that it took "very seriously that . . . Razo ha[d] accepted responsibility." In short, Razo's plea to the indictment provided a non-trivial benefit to Razo that proceeding to trial would have relinquished. Accordingly, Razo failed to demonstrate that counsel's performance fell below objectively reasonable standards, and the superior court therefore did not abuse its discretion by summarily dismissing the claim. See State v. Bennett, 213 Ariz. 562, ¶ 21 (2006).
¶13 We grant review but deny relief.