Opinion
No. 2 CA-CR 2013-0353-PR
02-03-2014
THE STATE OF ARIZONA, Respondent, v. DELLA LISA VERMUELE, Petitioner.
Isabel G. Garcia, Pima County Legal Defender By Joy Athena, Assistant Legal Defender, Tucson Counsel for Petitioner
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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Petition for Review from the superior Court in Pima County
No. CR20083043
The Honorable Paul E. Tang, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Isabel G. Garcia, Pima County Legal Defender
By Joy Athena, Assistant Legal Defender, Tucson
Counsel for Petitioner
memorandum decision
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. KELLY, Presiding Judge:
¶1 After a jury trial, appellant Della Vermuele was convicted of first-degree murder of her son. The trial court sentenced her to a natural life term of imprisonment. This court affirmed the conviction in a memorandum decision and affirmed the sentence in a published opinion. See State v. Vermuele, No. 2 CA-CR 2009-0395 (memorandum decision filed Mar. 4, 2011); State v. Vermuele, 226 Ariz. 399, 249 P.3d 1099 (App. 2011). In this petition for review, she challenges the trial court's order denying her petition for post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P., without an evidentiary hearing, rejecting her claim of ineffective assistance of counsel. We will not disturb the trial court's ruling unless it clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We find no such abuse here.
¶2 In its five-page minute entry ruling, the trial court thoroughly evaluated Vermuele's claim that trial counsel had been ineffective in connection with plea negotiations. As the court noted in identifying the claim, Vermuele maintained counsel had not given her adequate information to fully evaluate the strengths and weaknesses of the state's case against her so that she could make an informed decision whether to accept the state's plea offer. That offer would have allowed her to plead guilty to manslaughter. She also asserted counsel had made comments to her that she perceived as suggesting she could get a "better deal" from the state, although she acknowledged the best she could hope for was a manslaughter conviction. Citing the proper legal authority, the applicable standards for evaluating the claim, and the relevant portions of the record, including the record from the Donald hearing, the court concluded Vermuele had failed to raise a colorable claim for relief.
State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (App. 2000).
¶3 On review, Vermuele asserts for a variety of reasons that the trial court abused its discretion in dismissing the petition without an evidentiary hearing. We are not persuaded by these arguments. Rather, we conclude the court's ruling thoroughly and correctly analyzed the claims, and we, therefore, adopt it, given that no purpose would be served by restating the ruling here. State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). We note that the court reviewed information regarding Vermuele's mental state, including the letter from Dr. Richard Hinton, and carefully considered Vermuele's affidavit filed with her Rule 32 petition, in evaluating her claim. We note, too, that the trial court, not this court, had the opportunity to observe Vermuele at the Donald hearing and throughout trial, and considered, based on factors that likely do not appear on a record, whether Vermuele had fully understood what was occurring and the significance of the Donald hearing. See State v. Fritz, 157 Ariz. 139, 141, 755 P.2d 444, 446 (App. 1988) (trial court sole arbiter of witness credibility in Rule 32 proceeding). As the court pointed out, Vermuele's affidavit contained certain admissions that went to the heart of her rejection of the plea agreement that had been offered. Based on the record before us, we conclude she has not provided this court with a sufficient basis for disturbing the ruling on her petition.
We agree with Vermuele that the trial court erroneously informed her at the Donald hearing that if convicted of the charged offense of first-degree murder, one of the possible sentences was a life term with the possibility of "parole" after twenty-five years. That parole is no longer available. See A.R.S. §§ 31-402; 41-1604.09; see also A.R.S. §§ 13-751, 13-752. The possibility of commutation, however, is not a sufficient reason for disturbing the court's ruling on the Rule 32 petition, given the nature of her claims.
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¶4 We grant the petition for review but deny relief for the reasons stated.