Opinion
No. 2 CA-CR 2015-0024-PR
04-22-2015
THE STATE OF ARIZONA, Respondent, v. MICHAEL EDWARD CONNER, Petitioner.
COUNSEL Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent Law Office of Rudy Valenzuela, Tucson By Rudy Valenzuela 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Pima County
No. CR20090777001
The Honorable Teresa Godoy, Judge Pro Tempore
REVIEW GRANTED; RELIEF GRANTED
COUNSEL Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent
Law Office of Rudy Valenzuela, Tucson
By Rudy Valenzuela
Counsel for Petitioner
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 After a remand from this court, petitioner Michael Conner seeks review of the trial court's ruling denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P., and his subsequent motion for rehearing. "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). Because we conclude Conner has established such an abuse, we grant relief.
¶2 Pursuant to a plea agreement, Conner was convicted of two counts of burglary and one count of theft by control. The trial court sentenced him to concurrent, "slightly aggravated" prison terms, the longest of which was 8.5 years. The court did not order restitution at sentencing in November 2011, rather it ordered the parties to "get together and talk about restitution" and ordered that "restitution should be submitted to the Court pursuant to stipulation within 30 days of today's date." The record does not indicate such a stipulation was filed within thirty days.
¶3 In December 2011, trial counsel Mark Resnick filed a notice of post-conviction relief for Conner. Thereafter, in May 2012 the court ordered that Resnick was "withdrawn as attorney of record for [Conner] and attorney Harley Kurlander . . . [wa]s appointed." Kurlander filed a notice stating he had found no issues to raise in Rule 32 proceedings, and when Conner failed to file a pro se supplemental petition, the trial court dismissed the proceeding in December 2012.
¶4 In April 2013, the prosecutor filed a "Stipulation re: Restitution" signed by herself and Resnick, purporting to stipulate to $273,305.47 in restitution to a total of six victims. The trial court entered an order consistent with that stipulation on April 18, 2013. And in June 2013, the court issued an amendment to its November 2011 sentencing minute entry, adding a clause stating that "[t]he Court shall retain jurisdiction of the case for purposes of modifying the manner in which court-ordered payments are made until paid in full or until the defendant's sentence expires."
¶5 In September 2013, Conner initiated a proceeding for post-conviction relief as to restitution, citing Rule 32.1(f) and claiming in his notice and in his petition that Resnick had withdrawn from the case before signing the stipulation and had not discussed the stipulation with him. The trial court did not address Rule 32.1(f), but instead addressed the merits of Conner's claims. It determined that Conner had not received ineffective assistance of counsel because Resnick's "performance did not fall below an objective standard of reasonableness when he entered into a stipulation for restitution" because he had "only withdr[awn] regarding the Rule 32 proceedings" and "would be expected to complete the sentencing phase of the case." It also ruled that Resnick's performance was not deficient even though he had signed a stipulation that included what all parties agreed was an improper amount of restitution to one of the victims. The court pointed out that Resnick had objected to the improper amount, and found that Conner was not prejudiced because the court would order the amount indicated in the stipulation reduced to the proper amount.
¶6 On review, this court concluded that "[a]lthough trial counsel's having entered a stipulation on behalf of a client he no longer represented is problematic," Conner's claims could not be raised in an untimely petition absent a finding that his untimely filing fell within the exception set forth in Rule 32.1(f). We resolved that the trial court should make that determination in the first instance, and therefore vacated the trial court's decision, remanding the matter to that court. State v. Conner, No. 2 CA-CR 2014-0180-PR, ¶¶ 6-7 (memorandum decision filed Aug. 29, 2014).
¶7 On remand, the trial court concluded Conner's failure to timely file the notice "was through no fault of" his own. It otherwise affirmed "all prior Rulings and Orders in this matter." Conner filed a motion for rehearing, which the court denied. The instant petition for review, in which Conner again maintains he received ineffective assistance of counsel, followed.
¶8 In our previous decision, we concluded Conner had not met his burden to establish an abuse of discretion by the trial court because his claim was not one that could be raised in an untimely proceeding. Conner, No. 2 CA-CR 2014-0180-PR, ¶¶ 1, 5. But, based on the trial court's determination that Conner was without fault for the untimely filing, we may now address his claims relating to counsel's performance. To obtain reversal based on a claim of ineffective assistance of counsel, a defendant must show "that counsel's performance was deficient" and that the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶9 The ethical rules provide that an attorney who has terminated representation "shall take steps to the extent reasonably practicable to protect a client's interests," but the examples given of such steps include giving notice, surrendering documentation, and other such tasks. ER 1.16, Ariz. R. Prof'l Conduct, Ariz. R. Sup. Ct. 42. Nothing in Rule 1.16, or in any other authority cited to this court in this matter, allows an attorney to file a document affecting the substantive rights of a person he or she no longer represents. We think it plain that an attorney cannot act on behalf of someone he or she does not represent.
¶10 Consequently, Resnick's action in entering into the stipulation with the state as to restitution constituted deficient performance. Even assuming a showing of prejudice is required in this context, see State v. Gerlaugh, 144 Ariz. 449, 457, 698 P.2d 694, 702 (1985), that deficient performance also caused Conner prejudice. Resnick's entering the stipulation allowed the court to enter a restitution order purportedly without Conner's participation and deprived him of his right to be present at a restitution hearing. See State v. Guadagni, 218 Ariz. 1, ¶ 21, 178 P.3d 473, 479 (App. 2008) (holding that restitution hearing is part of sentencing); State v. Lewus, 170 Ariz. 412, 414, 825 P.2d 471, 473 (App. 1992) (holding defendant's right to be present at sentencing includes right to be present at restitution hearing), citing Ariz. R. Crim. P. 26.9 (defendant "shall be present at sentencing"). Indeed, because Resnick did not represent Conner, and could not enter a stipulation on his behalf, the restitution order must be vacated.
It is arguable that no showing of prejudice is required here. Because a stipulation was entered by an attorney who did not represent him, Conner could not participate in the proceedings related to restitution, and he effectively was not represented at all in the proceeding. When a defendant is denied counsel at a critical stage, such as sentencing, prejudice is presumed. See Gerlaugh, 144 Ariz. at 457, 698 P.2d at 702.
In its response to the petition below, the state asserted that Conner gave Resnick oral authority to enter into the stipulation after he was incarcerated. The state did not cite to anything in the record to support that assertion, and we see nothing. Conner's affidavit in his notice of post-conviction relief directly contradicts that statement. Conner states he did not give permission for Resnick to enter into the stipulation that was the basis for the court's restitution order.
--------
¶11 For these reasons, we grant the petition for review and grant relief.