Opinion
2 CA-CR 2023-0215-PR
03-12-2024
The State of Arizona, Respondent, v. Antajuan Stewart Carson Jr., Petitioner.
James Fullin, Pima County Legal Defender By Alex D. Heveri, Assistant Legal 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. CR20194645001 The Honorable James E. Marner, Judge
James Fullin, Pima County Legal Defender By Alex D. Heveri, Assistant Legal Defender, Tucson Counsel for Petitioner
Presiding Judge Brearcliffe authored the decision of the Court, in which Judge Eckerstrom and Judge Kelly concurred.
MEMORANDUM DECISION
BREARCLIFFE, PRESIDING JUDGE
¶1 Petitioner Antajuan Carson Jr. seeks review of the trial court's summary dismissal of 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). Carson has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Carson was convicted of aggravated assault with a deadly weapon and attempted first-degree murder, and was sentenced to concurrent thirty-five-year prison terms. He was also separately convicted of possession of a deadly weapon by a prohibited possessor, and the trial court ordered that sentence to be served concurrently with those above. We affirmed his convictions and sentences on appeal. State v. Carson, No. 2 CA-CR 2020-0006 (Ariz. App. Dec. 10, 2021) (mem. decision). Carson sought post-conviction relief, asserting trial counsel had been ineffective by advising him not to plead guilty to the indictment, which he maintains would have subjected him to lower sentencing ranges.
¶3 Carson was indicted under CR20192150 for attempted murder and possession of a deadly weapon by a prohibited possessor and under CR20194645 for aggravated assault. The state filed several allegations in CR20192150, including an allegation of prior violent or aggravated convictions, the dangerous nature of the offenses, and prior convictions for serious offenses. The state then successfully moved to "transfer all motions, pleadings, and future hearings in CR20192150 to CR20194645" and dismiss CR20192150. In his petition, Carson asserted that he informed his trial counsel that he wanted to plead guilty to the indictment, and she advised against it. He argued that, in advising him not to do so, counsel had failed to notice that the state's transfer motion did not transfer the allegations of aggravating factors to the new cause number and that the state had therefore not alleged aggravating factors. Carson's trial counsel signed an affidavit stating that, had she noticed the state's failure, she would indeed have advised Carson to plead guilty to the indictment, because she believed he would have only been exposed to presumptive terms of imprisonment in CR20194645, rather than aggravated terms.
¶4 The trial court summarily dismissed the proceeding. In doing so, the court observed that the same five notices alleging aggravating circumstances filed in CR20192150 had also been filed under CR20194645. The court further reasoned that even if Carson had pleaded guilty to the indictment in CR20194645, "two prior felony convictions were properly alleged" in that cause, allowing the same enhanced sentencing range that he received. Accordingly, the court found that Carson had failed to prove that any deficient performance prejudiced him. This petition for review followed.
¶5 To prevail on a claim of ineffective assistance, a petitioner is required to "demonstrate that counsel's conduct fell below an objective standard of reasonableness and that he was prejudiced thereby." State v. Bigger, 251 Ariz. 402, ¶ 8 (2021) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). A court must therefore consider, "in light of all the circumstances, whether counsel's performance was reasonable under prevailing professional norms." Id. (quoting State v. Pandeli, 242 Ariz. 175, ¶ 5 (2017)).
¶6 On review, Carson maintains trial counsel ineffectively advised him not to plead guilty to the indictment in CR20194645 without noticing the state's failure to allege aggravating factors. But this argument is premised on his-and apparently trial counsel's-misunderstanding of the effect of the state's transfer request. As noted above, the state's request transferred "all motions, pleadings, and future hearings" from CR20192150 to CR20194645. To interpret that request as not also transferring "notices" because they are neither "motions" nor "pleadings" would be a non-sensical and hypertechnical interpretation. Compare Notice, Black's Law Dictionary (11th ed. 2019) ("written or printed announcement"; "[l]egal notification required by law or agreement, or imparted by operation of law as a result of some fact"), with Motion, Black's Law Dictionary (11th ed. 2019) ("written or oral application requesting a court to make a specified ruling or order"), and Pleading, Black's Law Dictionary (11th ed. 2019) ("formal document in which a party to a legal proceeding . . . sets forth or responds to allegations, claims, denials, or defenses"). For that reason, we also reject Carson's contention that trial counsel was ineffective for failing to object to the trial on aggravating factors. See State v. Clay, 256 Ariz. 65, ¶ 8 (App. 2023) (rejecting "hypertechnical constructions" of statutes that raise form over substance); State v. Seyrafi, 201 Ariz. 147, ¶ 11 (App. 2001) (applying "practical, common sense constructions").
¶7 Moreover, as the trial court correctly noted, the five notices alleging aggravating circumstances that were filed in CR20192150 were also filed in CR20194645. Accordingly, even were Carson to have pleaded guilty to the indictment, he would have been subject to the same sentencing ranges under which he was ultimately sentenced. See A.R.S. §§ 13-701(D)(11) (prior felonies as aggravating circumstance), 13-703(C) (two or more historical prior felony convictions), 13-704 (dangerous offense), 13-708(A) (commission of offense while on probation), 13-1204(C) (aggravated assault on peace officer). Notably, in the court's postconviction ruling, the judge, who had also been the sentencing judge, stated that he would have imposed the same sentences even if Carson had pleaded guilty to the indictment.
¶8 Carson, however, challenges the trial court's conclusion that had he pleaded guilty under the indictment with two historical prior felony convictions, he would have faced the same sentencing range and that the court could also have found additional aggravators. Citing State v. Alvarez, 205 Ariz. 110, ¶ 8 (App. 2003), he contends that because the notice of prior felonies cited only to § 13-703 as sentence enhancers, not to § 13-701(D) as aggravators, the court was precluded from using the prior felonies as aggravators due to his lack of notice. Carson contends "it logically follows" that the notice of prior felony convictions "must be explicit as well." But Alvarez provides that for an aggravating circumstance to be used in more than one way, the legislature must explicitly authorize that and expressly identify the specific factor. 205 Ariz. 110, ¶ 8. The legislature has done so for prior historical felonies. See §§ 13-701(D)(11), 13-703(C). It is well established that a court may use prior convictions to both enhance and aggravate a sentence. See State v. Bonfiglio, 231 Ariz. 371, ¶ 11 (2013). Carson was therefore on notice that his prior convictions could be used to aggravate his sentence based on the notices filed by the state. See also State v. Carreon, 211 Ariz. 32, ¶¶ 6-7 (2005) (proof at trial of prior felonies "alone" exposed defendant to aggravated sentencing range). Thus, we agree with the court that Carson can show no prejudice under these circumstances. See State v. Bennett, 213 Ariz. 562, ¶ 21 (2006) (failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim).
¶9 We grant review but deny relief.