Opinion
No. 1 CA-CR 16-0410 PRPC
08-22-2017
STATE OF ARIZONA, Respondent, v. REGIS BLAKE ROSS, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Amanda M. Parker Counsel for Respondent The Nolan Law Firm PLLC, Mesa By Cari McConeghy Nolan, Todd Nolan 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
No. CR2013-421182-001
The Honorable Jeffrey A. Rueter, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Maricopa County Attorney's Office, Phoenix
By Amanda M. Parker
Counsel for Respondent The Nolan Law Firm PLLC, Mesa
By Cari McConeghy Nolan, Todd Nolan
Counsel for Petitioner
MEMORANDUM DECISION
Chief Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge James P. Beene joined. THUMMA, Chief Judge:
¶1 Petitioner Regis Blake Ross seeks review of the superior court's order denying his petition for post-conviction relief, filed pursuant to Arizona Rule of Criminal Procedure 32.1 (2017). Absent an abuse of discretion or error of law, this court will not disturb a superior court's ruling on a petition for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19 (2012). Because Ross has shown no such error, this court grants review but denies relief.
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
¶2 In September 2014, Ross pled guilty to (1) assault, a Class 1 misdemeanor and a domestic violence offense and (2) attempted aggravated assault, a Class 6 undesignated felony, both non-dangerous, non-repetitive offenses committed in May 2013. After acceptance of the plea but before sentencing, counsel for Ross moved to withdraw from the plea, citing a videotape discovered after entry of the plea that purportedly contradicted the victim's testimony and showed no assault. The actual videotape was not offered into evidence or included in the record. After oral argument, and based upon the statements of counsel, the superior court denied the motion to withdraw from the plea, finding no "good cause" to set the plea aside. The court then suspended sentence and placed Ross on concurrent standard probation grants for one year.
¶3 Ross filed a timely petition for post-conviction relief "of right," claiming ineffective assistance of counsel, and that his plea was not knowing, voluntary and intelligent because the videotape was not known before he pled guilty. The superior court summarily denied his petition noting "[c]ounsel has conceded that the video does not establish the Defendant's innocence nor does it even capture the events in which the Defendant was alleged to have assaulted the officer."
¶4 Ross then filed a timely petition for review with this court, reiterating his claims of ineffective assistance of counsel and that the plea was not knowing, voluntary and intelligent. To state a colorable claim for ineffective assistance of counsel, Ross must show that counsel's performance fell below objectively reasonable standards and that the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). Ross has not met his burden on either prong.
¶5 First, the video was never presented to the superior court or included in the record. Although counsel for Ross and the State described the video, those avowals are not definitive about what the video does and does not show. This gap in the record precludes any finding that the video, which was discovered after the entry of the plea, mandates a finding of ineffective assistance of counsel.
¶6 Once Ross' counsel found out about the video, he moved to withdraw the plea. There is nothing in the record to show that counsel was defective in not finding out about the video sooner than he did. Nor is it clear from the record how the video was discovered, when it was discovered or how it was obtained. The filings state it came from video surveillance done by a neighbor, but the neighbor is not named, and there is no affidavit in the record to corroborate this information. For these reasons, the record is insufficient to show that counsel's actions were deficient, or that there was any resulting prejudice to Ross.
¶7 Turning to the claim that the discovery of the video rendered his decision to plead involuntary, a plea agreement waives all non-jurisdictional defenses, errors and defects that occurred before the plea. State v. Moreno, 134 Ariz. 199, 200 (App. 1982). A defendant's decision to plead guilty must be voluntary, knowing and intelligent. See Boykin v. Alabama, 395 U.S. 238, 242 (1969); State v. Brown, 212 Ariz. 225, 229 ¶15 (2006); see also Ariz. R. Crim. P. 17.1 (b). A defendant's statements at a change of plea hearing regarding voluntariness are normally binding. State v. Hamilton, 142 Ariz. 91, 93 (1984). A plea will be found involuntary only where a defendant lacks information of "true importance in the decision-making process." State v. Pac, 165 Ariz. 294, 295-96 (1990).
¶8 During the plea colloquy, Ross agreed that he understood the plea and that it was voluntary. Ross admitted to the superior court, consistent with the plea agreement, that he injured one victim and attempted to kick another. Ross' affidavit, attached to his petition for post-conviction relief, does not recant this factual basis, although it does include a belief that Ross could have raised self-defense to the assault charge.
¶9 On this record, Ross has not shown that the superior court erred. Ross does not establish that the late discovery rendered his plea involuntary. The video is not included in the record and there is no evidence from the neighbor who apparently created the video. When a party does not provide necessary portions of the record, this court presumes that any missing testimony or evidence supports the action taken by the superior court. State v. Wilson, 95 Ariz. 372, 373 (1964).
¶10 Finally, the record shows (and Ross' counsel conceded) that even with the video, there is a gap in the timeframe when the assault could have taken place. Moreover, Ross' affidavit does not deny the factual basis for the plea, only that he felt he had a better self-defense argument with the video and would have gone to trial. Finally, Ross was initially charged with touching with the intent to injure, insult, or provoke, which means he could have been convicted for any part of the altercation wherein a touching, or attempted touching with the requisite intent, might have taken place. Thus, the video does not rise to the level of materiality sufficient to render the plea involuntary.
¶11 For these reasons, this court grants review but denies relief.