Opinion
No. 1 CA-CR 16-0093 PRPC
06-22-2017
STATE OF ARIZONA, Petitioner, v. RANDALL TOHONNIE, Respondent.
COUNSEL Coconino County Attorney's Office, Flagstaff By Eric Ruchensky Counsel for Petitioner John Trebon, P.C., Flagstaff By John Trebon Counsel for Respondent
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Coconino County
No. CR 2013-00429
The Honorable Cathleen Brown Nichols, Judge
REVERSED
COUNSEL Coconino County Attorney's Office, Flagstaff
By Eric Ruchensky
Counsel for Petitioner John Trebon, P.C., Flagstaff
By John Trebon
Counsel for Respondent
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 The State petitions for review from the superior court's order granting Randall Tohonnie's petition for post-conviction relief, which vacated Tohonnie's child abuse and attempted child abuse convictions. For the reasons stated, we reverse.
FACTS AND PROCEDURAL BACKGROUND
¶2 The victim, Tohonnie's eight-month-old son, underwent a physical examination on August 18, 2011, to address concerns about the size and shape of his head. The boy's head size had "a very dramatic increase" since his most recent doctor visit when he was three days old. The treating physician, Dr. Stuart, ordered a CT scan, reviewed it with another physician, and opined the victim suffered subdural hematomas on both sides of his head indicating nonaccidental trauma ("NAT"). Dr. Stuart immediately contacted Child Protective Services ("CPS").
¶3 Later that day, police officers accompanied CPS employees to Tohonnie's residence. Tohonnie admitted to tightly gripping the victim's arms and "violently" shaking him resulting in visible bruising. Tohonnie admitted that two months prior he "probably" left a visible bruise on the victim's arm because Tohonnie would grip the child's arm "too tight" before "slapp[ing] him in the head." Tohonnie explained his mother "lectur[ed]" him and provided him written materials "about smacking the baby." He also confessed to being "aggressive" with the child and slapping him on the side of his head "not more than ten [times]" over the course of the previous three or four months. Tohonnie admitted he "felt bad" when he hit the victim, and he "knew there would be a result to it."
¶4 On May 16, 2013, the grand jury returned a one-count indictment alleging child abuse, a dangerous crime against children and a domestic violence offense. Tohonnie was arraigned and released to pre-trial services. Although the State indicated it would not offer Tohonnie a plea agreement, Tohonnie's counsel successfully negotiated one.
¶5 On January 2, 2014, Tohonnie entered a plea agreement whereby the agreement amended the indictment and Tohonnie pled guilty to one count each of attempted child abuse, a class 3 felony and a dangerous crime against children, and child abuse, a class 3 felony. The convictions were based on the allegation that Tohonnie struck the victim's head on separate occasions. Abiding by the parties' stipulation to a five to eight-year sentence followed by probation, on January 30, 2014, the superior court imposed an eight-year prison term to be followed by five years of probation.
¶6 On July 17, 2014, Tohonnie filed an untimely notice of, and petition for, post-conviction relief pursuant to Arizona Rule of Criminal Procedure 32. In the petition, he raised a claim of newly discovered evidence and he cursorily mentioned, "in the alternative, if not newly discovered evidence, then ineffective assistance of counsel occurred for not obtaining independent expert testing in this case." See Ariz. R. Crim. P. 32.1(e) (newly discovered evidence is ground for post-conviction relief). The basis for Tohonnie's claims was an opinion by a pediatric neurosurgeon, Dr. Ruzicka, who examined the victim multiple times from March to April 2014. Dr. Ruzicka opined that the victim's history of subdural hematoma was "most likely due to benign external hydrocephalus." Tohonnie attached a copy of Dr. Ruzicka's report to the petition for post-conviction relief, but Tohonnie did not provide the court with any affidavits. The State responded, and Tohonnie replied, raising an additional claim of actual innocence. See Ariz. R. Crim. P. 32.1(h) (actual innocence is a ground for post-conviction relief). In his reply, Tohonnie also developed his claim of ineffective assistance of counsel ("IAC") and attached an affidavit by Wendy White, an attorney who avowed that Tohonnie's trial lawyer's "failure to investigate whether the child's medical condition . . . was or was not the result of [NAT] fell below prevailing professional norms." As specific examples of counsel's ineffectiveness, White referred to trial counsel's failure to consult with an independent medical expert and obtain an independent medical examination of the child.
Pursuant to A.R.S. § 13-4234(C), a notice of post-conviction relief "shall be filed within ninety days after the judgment and sentence are entered." See Ariz. R. Crim. P. 32.4(a), ("In a Rule 32 of-right proceeding, the notice must be filed within ninety days after the entry of judgment and sentence.")
We cite to the current version of applicable statutes or rules when no revision after the date of an alleged offense has occurred.
Per the record, benign external hydrocephalus can occur naturally during the first year of life and is characterized by "increased extracerebral fluid, slightly large ventricles, and there may or may not be subdural effusions." The "fluid spaces disappear [over time], the head remains large and the brain remains large."
Tohonnie also attached to his petition a copy of an article from the "American Journal of Neuroradiology" dated September 2006 that describes "the clinical and imaging characteristics of subdural hematomas that occur either spontaneously or as a result of accidental injury in infants with [benign enlargement of the subarachnoid spaces]." The article concludes: "Although suspicious for NAT, subdural hematomas can occur in children either spontaneously or as a result of accidental trauma. Caution must be exercised when investigating for NAT based on the sole presence of subdural hematomas . . . ."
¶7 The superior court held a two-day evidentiary hearing to address Tohonnie's claims. At the hearing, Drs. Stuart and Ruzicka testified, and the parties presented expert testimony by Drs. Bodensteiner and Coffman. White also testified. Additionally, Tohonnie's trial counsel testified, as did the foster mother with whom CPS placed the victim, the radiologist who interpreted the victim's CT scan in August 2011, and the detective who took over the investigation in 2012.
¶8 After the hearing, the superior court found the existence of newly discovered material facts was "such that it would likely have altered the sentence if known at the time of sentencing." Regarding the claim of ineffective assistance of counsel, the court concluded:
In the present case, Petitioner/Defendant has demonstrated that his prior counsel's decision to not consult with an independent medical expert fell below the prevailing professional norms, and prior defense counsel's deficient performance prejudiced him. See, [State v.] Denz, 232 Ariz. 441, 306 P.3d 98 (App. Div.2 2013) [sic]. Based on the forgoing
reasons, the Petitioner/Defendant is entitled to withdraw from the plea agreement he accepted in this case.The superior court rejected Tohonnie's claim of actual innocence. Accordingly, the court allowed Tohonnie to withdraw from the plea agreement, vacated his convictions, and ordered him released from prison. The State's timely petition for review followed.
DISCUSSION
A. The Superior Court Lacked Jurisdiction to Decide Tohonnie's Claim of Ineffective Assistance of Counsel.
¶9 A.R.S. § 13-4234(G), provides that the time limits for filing a notice and petition for post-conviction relief "are jurisdictional, and an untimely filed notice or petition shall be dismissed with prejudice." State v. Lopez, 234 Ariz. 513, 515 ¶ 8 (App. 2014). The Court in Lopez found the jurisdictional bar applies regardless of the magnitude of the claim involved.
Our analysis is consistent with the law governing criminal appeals. "Jurisdiction to entertain a criminal appeal is vested in this court by the timely filing of a notice of appeal pursuant to a jurisdictional statute." State v. Smith, 171 Ariz. 501, 831 P.2d 877, 879 (App. 1992). Thus, a defendant who fails to timely file a notice of appeal—like a defendant who does not timely file a notice of post-conviction relief—has no remedy unless that defendant can demonstrate, pursuant to Rule 32.1(f), that the "failure to file a notice of post-conviction relief of-right . . . within the prescribed time was without fault on the defendant's part."Lopez, 234 Ariz. at 515, ¶ 9.
¶10 Tohonnie did not plead or prove that his failure to file a timely notice or petition for post-conviction relief was without fault on his part. Therefore, the superior court lacked jurisdiction to grant relief on the ineffective assistance of counsel claim.
Rule 32.4(a), provides that "[a]ny notice not timely filed may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h)." Claims relating to ineffective assistance of counsel fall within Rule 32.1(a). As Rule 32.1(a) is not an exception to the jurisdictional bar of A.R.S. § 13-4234(G) and Rule 32.4(a), Tohonnie could not raise an ineffective assistance of counsel claim without first pleading and proving that the failure to file within the time limits was of no fault of his own. See Ariz. R. Crim. P. 32.2(b) (When a defendant wishes to raise a claim that his late notice was of no fault of his own in an "untimely post-conviction relief proceeding, the notice of post-conviction relief must set forth the . . . reasons for not raising the claim in . . . a timely manner. If the specific exception and meritorious reason do not appear substantiating the claim and indicating why the claim was not stated . . . in a timely manner, the notice shall be summarily dismissed.") (emphasis added).
¶11 We note that the State did not raise the timeliness of Tohonnie's petition/notice. Nevertheless, the superior court has an obligation to determine its own jurisdiction. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 (1998); M-11 Ltd. P'ship v. Gommard, 235 Ariz. 166, 170, ¶ 12 (App. 2014); Morgan v. Hays, 102 Ariz. 150, 152 (1967). Rule 32.2(c) further provides, "any court on review of the record may determine and hold that an issue is precluded regardless of whether the state raises preclusion." Likewise, Rule 32.6(c) mandates that "the court shall identify all claims that are procedurally precluded under this rule." (emphasis added). The superior court failed to make the Rule 32.6(c) finding in this case.
¶12 The issue of ineffective assistance of counsel was not jurisdictionally before the superior court. Therefore, the relief granted on the claim is vacated.
B. If the Issue of Ineffective Assistance of Counsel Was Properly Before the Superior Court, It Erred by Granting Relief on the Claim.
¶13 The State argues Tohonnie's trial counsel's decision not to hire an independent medical expert before obtaining the plea agreement did not fall below prevailing professional standards. The State thus asserts that the superior court erred by finding ineffective assistance of counsel.
¶14 Whether Tohonnie's counsel "rendered ineffective assistance is a mixed question of fact and law." State v. Pandeli, 394 P.3d 2, 7, ¶ 4 (2017) (quoting State v. Denz, 232 Ariz. 441, 444, ¶ 6 (App. 2013)). Although we review the court's legal conclusions and constitutional issues de novo, we ultimately review a superior court's ruling on a petition for post-conviction relief for an abuse of discretion. Id. "An abuse of discretion occurs if the [superior] court makes an error of law or fails to adequately investigate the facts necessary to support its decision." Pandeli, 394 P.3d at 7, ¶ 4.
¶15 A defendant is entitled to effective representation during plea negotiations with the State. State v. Donald, 198 Ariz. 406, 413, ¶ 14 (App. 2000). To succeed on a 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). If a defendant fails to make a sufficient showing on either prong of the Strickland test, the superior court need not determine whether the defendant satisfied the other prong. State v. Salazar, 146 Ariz. 540, 541 (1985). To establish counsel's deficient performance during plea negotiations, a defendant must show that counsel either (a) gave erroneous advice or (b) failed to give information necessary to allow the defendant to make an informed decision whether to accept the plea. Donald, 198 Ariz. at 413, ¶ 14.
¶16 The reasonableness of counsel's actions may be determined by the information supplied to counsel by the defendant. Strickland, 466 U.S. at 691. "Defense counsel's determinations of trial strategy, even if later proven unsuccessful, are not ineffective assistance of counsel." State v. Valdez, 160 Ariz. 9, 14 (1989). "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Pandeli, 394 P.3d at 8, ¶ 7 (citation and internal quotations omitted). "[R]eviewing courts must be very cautious in deeming trial counsel's assistance ineffective when counsel's challenged acts or omissions might have a reasonable explanation." Id.
¶17 At the evidentiary hearing, Tohonnie's trial counsel testified that, immediately upon receiving this case, the prosecutor informed him there would be no plea offers from the State per the prosecutor's policy, but offers from the defense would be considered. Counsel testified that he was the defense attorney on the child abuse case that precipitated this policy. The defendant in that case confessed to police, rejected the prosecutor's seven-year plea offer in hopes of getting five years, went to trial, was convicted, and sentenced to over 100 years in prison. The prosecutor in that prior case was also assigned to Tohonnie's case.
¶18 Tohonnie's counsel also testified that he was "very concerned about the . . . potential outcomes" for Tohonnie and "very concerned" about Tohonnie's admissions. Counsel's concerned was based on prior experience with the prosecutor that that if the case were to go to trial, the prosecutor would reevaluate the case and seek another indictment for multiple counts of child abuse.
¶19 Counsel further testified that with these experiences and concerns in mind, he met with Tohonnie and "went over the options . . . in terms of taking the case to trial or trying to get a plea agreement. And [Tohonnie] indicated to [counsel] that he wanted to try to get a plea agreement." Counsel testified that he "had the experience many times where [he] . . . made an offer for a particular plea and [he] offered something that was too low and was denied the opportunity to even have a panel meeting . . . and was just rejected." Based on materials Tohonnie submitted to counsel indicating Tohonnie "had bent over backwards to do everything that was asked of him by CPS to get that . . . child returned to him," counsel submitted an offer of five years' imprisonment. The prosecutor rejected the offer, and proposed the terms of the plea agreement that Tohonnie later accepted. Had Tohonnie not pled, he was facing a presumptive 17-year flat prison term.
¶20 Regarding his decision not to consult or hire a medical expert prior to formulating a plea offer, counsel testified that he "didn't think about the possibility of . . . using a doctor . . . in the process of trying to get a plea offer in the case." Counsel also stated that, had Tohonnie's case gone to trial, he "definitely recognized . . . [he] would need . . . to have a doctor there." Counsel also testified that hiring an expert in this case before the plea was not "realistic" and "probably would have set it on a different track, in terms of outcome that probably would have been a trial."
¶21 Although White opined in her affidavit and on direct examination that counsel's failure to hire an independent medical expert fell below the prevailing professional norms, she gave that opinion without knowing that defense counsel was responsible for initiating the plea process at Tohonnie's request. Furthermore, White admitted that under certain circumstances the decision by defense counsel to not hire an expert could be a tactical choice, and that Arizona law recognizes that hiring a defense expert is not a requirement in every case. See, e.g., Denz, 232 Ariz. at 445, ¶ 11 ("[A]lthough counsel has a duty to engage in adequate investigation of possible defenses, counsel may opt not to pursue a particular investigative path based on his or her reasoned conclusion that it would not yield useful information or is otherwise unnecessary in light of counsel's chosen trial strategy.").
¶22 Thus, the undisputed evidence at the evidentiary hearing indicated defense counsel, who had prior experience negotiating pleas in child abuse cases with the same prosecutor assigned to Tohonnie's case, initiated plea negotiations at the behest of Tohonnie. Also undisputed was counsel's testimony, based on his experience with trying cases in Coconino county, that the county attorney's office would not be amenable to negotiating a plea had Tohonnie hired an expert in this case. And significantly, defense counsel testified that, based on Tohonnie's admissions and the possibility of additional charges, counsel was "very concerned" about not getting a plea agreement for his client.
We note that had defense counsel been aware of Dr. Ruzicka's diagnosis of benign external hydrocephalus, counsel likely would have determined the doctor's opinion would not be useful during plea negotiations. Dr. Ruzicka testified at the hearing that he made that diagnoses without knowing Tohonnie had admitted to repeatedly slapping the victim in the head and violently shaking him. Dr. Ruzicka then stated, "That would have definitely influenced my decision if that were to happen around the time that that CT scan was performed. . . . I would lean towards . . . trauma[,] . . . [and] I would [have reported that to DCS or CPS]."
¶23 The United States Supreme Court has found that "the Constitution, in respect to a defendant's awareness of relevant circumstances, does not require complete knowledge, but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor." United States v. Ruiz, 536 U.S. 622, 623 (2002). The Court has thus upheld criminal convictions notwithstanding an assertion that the defendant acted on incomplete information when accepting a plea offer. See id.; Brady v. United States, 397 U.S. 742, 757 (1970) (defendant "misapprehended the quality of the State's case," "the likely penalties, and failed to "anticipate" a change in the law regarding relevant "punishments"); McMann v. Richardson, 397 U.S. 759, 770 (1970) (counsel "misjudged the admissibility" of a "confession"); United States v. Broce, 488 U.S. 563, 573 (1989) (counsel failed to point out a potential defense); Tollett v. Henderson, 411 U.S. 258, 267 (1973) (counsel failed to find a potential constitutional infirmity in grand jury proceedings).
¶24 The Supreme Court has also acknowledged that accepting responsibility with an early plea responds to certain basic premises in the law and its function. Premo v. Moore, 562 U.S. 115, 124-25 (2011). Such principles are eroded if a guilty plea is too easily set aside based on additional facts and circumstances not apparent to a competent attorney when actions and advice leading to the plea took place.
Plea bargains are the result of complex negotiations suffused with uncertainty, and defense attorneys must make careful strategic choices in balancing opportunities and risks. The opportunities, of course, include pleading to a lesser charge and obtaining a lesser sentence, as compared with what might be the outcome not only at trial but also from a later plea offer if the case grows stronger and prosecutors find stiffened resolve.Premo, 562 U.S. at 124-25.
. . . .
These considerations make strict adherence to the Strickland standard all the more essential when reviewing the choices an attorney made at the plea bargain stage. Failure to respect the latitude Strickland requires can create at least two problems in the plea context. First, the potential for the distortions and imbalance that can inhere in a hindsight perspective may become all too real. The art of negotiation is at least as nuanced as the art of trial advocacy, and it presents questions farther removed from immediate judicial supervision. There are, moreover, special difficulties in evaluating the basis for counsel's judgment: An attorney often has insights borne of past dealings with the same prosecutor or court, and the record at the pretrial stage is never as full as it is after a trial. In determining how searching and exacting their review must be, [reviewing courts] must respect their limited role in determining whether there was manifest deficiency in light of information then available to counsel. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
¶25 On this record, we conclude the superior court did not properly defer to defense counsel's strategic decision to pursue plea negotiations without having obtained an independent medical expert's opinion. Accordingly, the court abused its discretion by granting Tohonnie relief on his ineffective assistance of counsel claim. See Associated Indem. Corp. v. Warner, 143 Ariz. 567, 571 (1985) (in reviewing an exercise of discretion, "[t]he question is not whether the judges of this court would have made an original like ruling, but whether a judicial mind, in view of the law and circumstances, could have made the ruling without exceeding the bounds of reason") (quoting Davis v. Davis, 78 Ariz. 174, 179 (1954) (Windes, J., specially concurring)).
C. Tohonnie Failed to Prove His Claim of Newly Discovered Evidence.
¶26 "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). The requirements for succeeding on a Rule 32 claim based on newly discovered evidence are:
Newly discovered material facts probably exist and such facts probably would have changed the verdict or sentence. Newly discovered material facts exist if:Ariz. R. Crim. P. 32.1(e).
(1) The newly discovered material facts were discovered after the trial.
(2) The defendant exercised due diligence in securing the newly discovered material facts.
(3) The newly discovered material facts are not merely cumulative or used solely for impeachment, unless the impeachment evidence substantially undermines testimony which was of critical significance at trial such that the evidence probably would have changed the verdict or sentence.
¶27 Here, Tohonnie's newly-discovered evidence claim failed because he did not satisfy the due diligence requirement. See State v. Dogan, 150 Ariz. 595, 600 (App. 1986) ("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.") (emphasis added). Tohonnie's IAC claim was premised on the assumption that counsel should have discovered a diagnosis of benign external hydrocephalus before Tohonnie pled guilty, an assumption that undercuts any argument that the evidence could not have been discovered through reasonable diligence before the change-of-plea hearing. Furthermore, to support his allegation that before he pled guilty he exercised due diligence to obtain the "newly discovered evidence," Tohonnie merely asserted, "the evidence could not have been produced previously." He provided no affidavit from the victim's mother—who took the victim to Dr. Ruzicka to "question[] the possibility of NAT" over two years and eight months after the August 2011 doctor visit—avowing that she or others tried unsuccessfully to obtain Dr. Ruzicka's opinion before Tohonnie pled guilty. See State v. Turner, 92 Ariz. 214, 221 (1962) ("The accused, when moving for a new trial on the ground of newly-discovered evidence, must show by affidavit or testimony in court, that due diligence was used to ascertain and produce the evidence in time for use at his trial. He must account for his failure to produce the evidence by stating explicitly the details of his efforts to ascertain and procure it."); State v. Adamson, 136 Ariz. 250, 265 (1983) (citing Turner when discussing standard for reviewing superior court's decision to grant or deny a petition for post-conviction relief).
We note, and Tohonnie agrees, that the victim's mother was supportive of Tohonnie in this case and opposed the plea agreement because she did not want Tohonnie to go to prison.
¶28 Because Tohonnie's petition failed to prove one of the required factors, he failed to establish a claim of newly discovered evidence. See State v. Andersen, 177 Ariz. 381, 387 (App. 1993) (finding petition failed to present claim because one requirement was not established). On this record, the court erred as a matter of law by failing to make an express finding in its order granting relief that the "newly discovered evidence" could not have been discovered despite a diligent attempt to procure it before Tohonnie pled guilty. Ariz. R. Crim. P. 32.8(d) ("If the court finds in favor of the defendant, it shall . . . make specific findings of fact, and state expressly its conclusions of law relating to each issue presented."); see also Pandeli, 394 P.3d at 7, ¶ 3. In any event, no evidence was produced at the evidentiary hearing to support such a finding.
CONCLUSION
¶29 The superior court's order granting Tohonnie Rule 32 relief is reversed. This matter is remanded for further proceedings consistent with this decision.