Opinion
2 CA-CR 2012-0397-PR
01-14-2013
THE STATE OF ARIZONA, Respondent, v. EARL BALL, Petitioner.
Earl Ball In Propria Persona
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF COCHISE COUNTY
Cause No. CR98000345
Honorable Ann R. Littrell, Judge
REVIEW GRANTED; RELIEF DENIED
Earl Ball
Florence
In Propria Persona
ESPINOSA, Judge. ¶1 After two jury trials in two causes, CR98000296 (one count of sexual exploitation of a minor), and CR98000345 (sixteen counts of sexual exploitation of a minor and the subject of this petition for review), petitioner Earl Ball was convicted of twelve counts of sexual exploitation of a minor. State v. Ball, Nos. 2 CA-CR 1999-0481, 2 CA-CR 2001-0279-PR, 2-3 (consolidated) (memorandum decision filed Aug. 31, 2006). In State v. Ball, No. 2 CA-CR 2010-0409-PR (memorandum decision filed Mar. 24, 2011), this court's most recent decision denying Ball relief, we reviewed the history of his many attempts to challenge the convictions and sentences, which includes his appeal and numerous petitions for post-conviction relief, pursuant to Rule 32, Ariz. R. Crim. P. This petition for review follows the trial court's August 31, 2012 order in which it rejected claims Ball has raised in yet another post-conviction proceeding. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Ball has not sustained his burden of establishing such abuse here. ¶2 In his January 18, 2012 petition for post-conviction relief, filed in CR98000345, Ball contended the trial court "did not have subject matter jurisdiction to hold the trial; as no crime was committed by the petitioner." The gravamen of his argument is that the evidence established he had first come into possession of the items that were the subject of these charges in 1981, "fully 2 years before the act of possession was proscribed by A.R.S. [§] 13-3553(A)(2)," and based on the prohibition of the enactment of law ex post facto, the convictions "should be reversed and expunged from the record." He also argued prosecutors had misled the grand jury by not disclosing that the initial possession was not a crime. Ball stated in his Rule 32 petition that counsel "steadfastly refused defendant's pleas to argue his constitutional rights," intimating counsel had been ineffective for not arguing the photographs had been taken before "the act of possession was proscribed." Similarly, although somewhat more directly, Ball asserts in his petition for review that trial counsel had been ineffective because he knew that the ten "pictures at issue had been in [Ball's] home from as early as 1981." Ball complains on review that counsel told him, "a constitutional defense is such a bogus defense, and I will not pursue one on your behalf," presumably referring to the claim about the photographs having been acquired in 1981. ¶3 The trial court correctly found Ball precluded from raising these claims, which either had been or could have been raised on appeal or in previous post-conviction proceedings. We note, too, that although Ball characterizes the first claim as relating to subject matter jurisdiction, which may be raised at any time, that characterization of the claim is incorrect. See State v. Espinoza, 229 Ariz. 421, ¶ 19, 276 P.3d 55, 59 (App. 2012) (discussing subject matter jurisdiction and acknowledging "not all legal errors are jurisdictional errors" and previous case law has conflated two concepts); see also State v. Maldonado, 223 Ariz. 309, ¶¶ 15-18, 223 P.3d 653, 655-56 (2010) (finding "no longer tenable" reasoning of two prior supreme court decisions finding jurisdictional error from procedural defects in charging process). ¶4 In his petition for review, Ball simply restates the same claims and arguments he had asserted in his petition, adding the following: "under the 'new rule of law' as announced by the United States Supreme Court on March 21, 2012 in Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376 (2012), the plea agreement that would have dismissed this case with prejudice, was never discussed with, or explained to defendant." Relying on State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (App. 2000), he requests an evidentiary hearing. Ball requested that counsel be appointed to represent him in May 2012 in a document entitled, "Notice of Post-Conviction Relief and Request for Counsel." He also relied on Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012). It appears the trial court resolved this separate claim by concluding Ball had provided no factual support for his claims that his Rule 32 counsel had been ineffective in failing to assert that trial counsel had been ineffective with respect to plea negotiations, indicating there was no evidence a plea had been offered and rejected. The court also seemed to conclude Ball had not raised any other colorable claim of ineffective assistance of trial or appellate counsel. But what Ball appears to be suggesting is that based on Lafler and, presumably, Martinez, he was entitled to counsel to explore the potential claims of ineffective assistance of trial counsel. Because he is mistaken, we cannot say the trial court abused its discretion in refusing to appoint counsel and summarily denying post-conviction relief. ¶5 In Lafler, the Court acknowledged a defendant has a right to effective representation during plea negotiations and addressed the prejudice portion of the Strickland test when a defendant rejected a plea offer and was convicted following trial. __ U.S. at ___, 132 S. Ct. at 1384, 1391. Even assuming, without deciding, that Lafler would apply to Ball's clearly final case, it nevertheless does not benefit him, given the fact that any such claim of ineffective assistance of trial counsel with respect to plea negotiations or any other ground is precluded because it has long been the law in Arizona that a defendant is entitled to effective representation in the plea context, see Donald, 198 Ariz. 406, ¶ 14, 10 P.3d at 1200, and this issue could have been raised in a previous post-conviction proceeding. See Ariz. R. Crim. P. 32.1(g); State v. Febles, 210 Ariz. 589, ¶ 7, 14-15 & n.4, 115 P.3d 629, 632, 634 & n.4 (App. 2005) (new constitutionally based rule applies to all cases not yet final on direct review the day case decided but has no retroactive application unless falls within narrow exceptions). Nor does Martinez, even assuming without deciding it applies to Ball's case, provide him with the right to counsel. ¶6 In Martinez, the Court acknowledged that under Arizona law, a non-pleading defendant does not have the right to effective representation in post-conviction proceedings and may not, therefore, assert a claim of ineffective assistance of Rule 32 counsel in a successive post-conviction proceeding based on counsel's alleged deficiencies in presenting claims in the post-conviction proceeding. ___ U.S. at ___, 132 S. Ct. at 1313-14; see also State v. Mata, 185 Ariz. 319, 336-37, 916 P.2d 1035, 1052-53 (1996). But the Court addressed a very narrow question in Martinez, stating, "The precise question here is whether ineffective assistance in an initial-review collateral proceeding on a claim of ineffective assistance at trial may provide cause for a procedural default in a federal habeas proceeding." Martinez, ___ U.S. at ___, 132 S. Ct. at 1315. It further stated, "This is not the case, however, to resolve" whether a defendant is constitutionally entitled to effective assistance of counsel in the first collateral proceeding in which the defendant may assert a claim of ineffective assistance of trial counsel, a question the Court had left open in Coleman v. Thompson, 501 U.S. 722, 755 (1991). Martinez, ___ U.S. at ___, 132 S. Ct. at 1315. The Court then held: "This opinion qualifies Coleman by recognizing a narrow exception: Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Id. ¶7 Ball has failed to sustain his burden of establishing the trial court abused its discretion by summarily dismissing his petition for post-conviction relief. Accordingly, although review is granted, relief is denied.
The causes were tried together and after the first trial, the jury could not reach a verdict on some of the counts, resulting in a mistrial and a second trial.
Strickland v. Washington, 466 U.S. 668 (1984).
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PHILIP G. ESPINOSA, Judge
CONCURRING: ______________
GARYE L. VÁSQUEZ, Presiding Judge
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VIRGINIA C. KELLY, Judge