Opinion
2 CA-CR 2023-0023-PR
04-05-2023
The State of Arizona, Respondent, v. Thomas Donald Slemmer, Petitioner.
Megan Page, Pima County Public Defender By Michael J. Miller, Assistant Public Defender, Tucson Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20050012001 The Honorable Jeffrey T. Bergin, Judge
Megan Page, Pima County Public Defender By Michael J. Miller, Assistant Public Defender, Tucson Counsel for Petitioner
Chief Judge Vasquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Gard concurred.
MEMORANDUM DECISION
VASQUE Z, CHIEF JUDGE:
¶ 1 Thomas Slemmer seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 33, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Slemmer has not met his burden of establishing such abuse here.
¶ 2 Slemmer pled guilty in 2005 to two counts of child molestation. The trial court sentenced him to an aggravated twenty-four-year prison term on one count and, for the other, suspended the imposition of sentence and placed Slemmer on lifetime probation. Slemmer filed a timely notice of post-conviction relief, but, for reasons unknown, the trial court did not address that notice until January 2021. At that time, the court appointed counsel, and Slemmer thereafter filed a petition arguing he did not knowingly, intelligently, and voluntarily waive his right to a jury determination of aggravating factors. He asserted he was not informed of that right during the plea colloquy and had not read the plea agreement, "but rather signed it after being told what it contained." Thus, he concluded, "there was no evidence that [he] knowingly waived the right" to a jury trial on aggravating factors.
¶ 3 The trial court summarily denied relief. It noted that the plea agreement contained an express waiver of the right to a jury trial on aggravating factors, that Slemmer had told the court he had been informed of the agreement's contents, and that counsel had signed the plea acknowledging she had reviewed its terms with Slemmer. This petition for review followed.
¶ 4 On review, Slemmer asserts that "the complete record does not show that he intelligently and knowingly waived his right to have a jury determine aggravating factors." Before a trial court may accept a defendant's guilty plea, the court must personally inform the defendant of, among other things, the constitutional rights the defendant is waiving by pleading guilty. Ariz. R. Crim. P. 17.2(a)(3). Those rights include the right to a jury trial, including a trial on aggravating factors. See State v. Brown, 212 Ariz. 225, ¶ 15 (2006). The trial court did not specifically advise Slemmer of this right during the plea colloquy and, thus, violated Rule 17.2.
At the time Slemmer pled guilty, this requirement was found in Rule 17.2(c). 171 Ariz. XLIX-L (1992).
¶ 5 But Slemmer is not entitled to relief. A violation of Rule 17.2 does not necessarily mean that the defendant's constitutional rights were violated nor that the plea was not voluntary, knowing, and intelligent. Instead, "[w]hen the defendant claims his plea was unknowing and therefore involuntary, the question is not simply what the defendant was told in court but what he knew from any source." State v. Crowder, 155 Ariz. 477, 479 (1987), overruled in part on other grounds by E.H. v. Slayton, 249 Ariz. 248, ¶ 26 (2020); see also State v. McVay, 131 Ariz. 369, 372 (1982) (plea voluntary and knowing if "defendant did, in fact, know the rights he was waiving" despite defective colloquy).
¶ 6 Slemmer does not dispute that his plea agreement included an express waiver of his right to a jury trial on aggravating factors nor that his attorney reviewed every aspect of his plea agreement with him. Slemmer confirmed during his colloquy that he was informed of the content of the plea agreement. Additionally, Slemmer has not provided an affidavit asserting he had not been fully apprised of his rights or did not understand the rights he was waiving. Thus, we cannot say the trial court erred in concluding his plea was voluntary, knowing, and intelligent.
¶ 7 We grant review but deny relief.