Opinion
No. 2 CA-CR 2017-0376-PR
02-21-2018
THE STATE OF ARIZONA, Respondent, v. DALE ALLEN SEVERANCE, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Andrea L. Kever, Deputy County Attorney, Phoenix Counsel for Respondent Dale A. Severance, Phoenix In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Maricopa County
No. CR2010006582001DT
The Honorable Brian D. Kaiser, Judge Pro Tempore
REVIEW GRANTED; RELIEF GRANTED IN PART AND DENIED IN PART
COUNSEL William G. Montgomery, Maricopa County Attorney
By Andrea L. Kever, Deputy County Attorney, Phoenix
Counsel for Respondent Dale A. Severance, Phoenix
In Propria Persona
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. ECKERSTROM, Chief Judge:
¶1 Dale Severance seeks review of the trial court's order summarily denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). We grant review and, for the reasons stated, grant relief in part and deny relief in part.
¶2 Severance pled guilty to aggravated driving under the influence of intoxicating liquor or drugs and was sentenced to a six-year prison term. At the time Severance entered his guilty plea, several motions filed by counsel were pending, including motions to dismiss for preindictment delay and the violation of his speedy trial rights, and a motion to suppress evidence asserting the traffic stop leading to his arrest had been improper. The trial court explained to Severance at his change-of-plea hearing that his pending motions "are not going to be decided and you are simply going to proceed on with sentencing in this case." Severance stated he understood. However, at sentencing, Severance asked the court whether his claims of delay would be "addressable in post-conviction." The court responded that it could not "give [him] advice on something like that" and Severance should address the matter with counsel and "file whatever you think is appropriate."
¶3 Severance sought post-conviction relief and was appointed counsel. He elected to proceed pro se, however, and filed a petition arguing his conviction was improper due to preindictment delay, the state's violation of the Interstate Agreement on Detainers, A.R.S. § 31-481, "Post Indictment Delay," and the unconstitutionality of the traffic stop leading to his arrest. Severance further claimed his trial counsel had been ineffective for promising him he would be able to raise the above claims following his guilty plea. He also argued he was entitled to additional presentence incarceration credit.
¶4 The trial court summarily denied relief. The court noted Severance's claims regarding detainer, delay, and his traffic stop were waived by his guilty plea. It addressed his claim of ineffective assistance, concluding the court had made clear that his pending motions were "moot" irrespective whether counsel had advised him "he could preserve these claims while still entering the plea agreement." Finally, the court concluded Severance had failed to show "he is entitled to more time credit than he has already received." This petition for review followed.
¶5 On review, Severance generally reurges the claims he raised below. We agree with the trial court that, by pleading guilty, Severance waived any claims of improper delay or violation of the detainers act, as well as his claim the traffic stop was improper. A guilty plea waives all non-jurisdictional defects, even claims of ineffective assistance of counsel except to the extent it relates to the validity of the plea. State v. Leyva, 241 Ariz. 521, ¶ 18 (App. 2017). Severance has not established that any of his claims implicate the court's jurisdiction, and we find no authority to support that conclusion. See, e.g., State v. Ellis, 117 Ariz. 329, 331 (1977) (speedy trial claim waived by guilty plea); State v. Lopez, 99 Ariz. 11, 13 (1965) (illegal search and seizure issues waived by guilty plea); State v. Gourdin, 156 Ariz. 337, 338 (App. 1988) ("[detainer] violations do not involve jurisdictional matters"). And, we have the reviewed the record and have determined the court correctly rejected Severance's claim he was entitled to additional credit for presentence incarceration; we accordingly adopt that portion of the court's ruling. See State v. Whipple, 177 Ariz. 272, 274 (App. 1993) (when trial court has correctly ruled on issues raised "in a fashion that will allow any court in the future to understand the resolution[, n]o useful purpose would be served by this court rehashing the trial court's correct ruling in a written decision").
Insofar as Severance asserted trial counsel was ineffective for failing to pursue a ruling on the various motions, that claim is unrelated to the validity of his plea, and we therefore do not address it. See Leyva, 241 Ariz. 521, ¶ 18.
To the extent Severance claims his counsel was ineffective for failing to develop this claim, he did not raise this issue below and, accordingly, we do not address it. See Ariz. R. Crim. P. 32.9(c)(1)(A) (permitting petition "for review of the [trial court's] decision").
¶6 But the trial court should not have summarily denied Severance's claim that counsel improperly advised him he would be entitled to raise his various claims in a post-conviction proceeding. Severance is entitled to a hearing if he has presented a colorable claim for relief, that is, "he has alleged facts which, if true, would probably have changed the verdict or sentence." State v. Amaral, 239 Ariz. 217, ¶¶ 10-11 (2016). "To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006); accord State v. Kolmann, 239 Ariz. 157, ¶ 9 (2016); see also Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In evaluating whether a claim is colorable and whether Severance is thus entitled to an evidentiary hearing, we must assume the facts he has alleged are true. See State v. Watton, 164 Ariz. 323, 328 (1990).
¶7 An attorney's representation may be found constitutionally deficient if he fails to timely communicate a formal plea offer to his client, Missouri v. Frye, 566 U.S. 134, 147 (2012); provides his client with erroneous plea advice; or, fails to provide "information necessary to allow [him] to make an informed decision whether to accept the plea," State v. Donald, 198 Ariz. 406, ¶ 16 (App. 2000). To establish prejudice in this context, a defendant must show a reasonable probability that, absent his attorney's deficient conduct, he would not have accepted the plea offer. Id. ¶ 20.
¶8 As we noted above, the trial court advised Severance at his change-of-plea colloquy that his various pending motions would not be addressed by the court. But, that is not inconsistent with Severance's assertion that counsel had told him he would be permitted to later raise these claims in a collateral proceeding. And such advice would clearly be defective since, as we have explained, Severance waived the claims by pleading guilty. And his confusion is evident in the record—at his sentencing hearing, the court declined to tell him whether he would be entitled to raise his claims in a Rule 32 proceeding. Severance asserted in his petition below he would not have accepted the plea had he understood he would be precluded from raising the arguments. Taking his factual assertions as true, as we must, he has raised a colorable claim and is entitled to an evidentiary hearing.
¶9 We grant review and relief in part. We remand the case to the trial court for an evidentiary hearing on Severance's claim his plea was rendered involuntary due to the ineffective assistance of counsel. We otherwise deny relief.