Opinion
No. 1 CA-CR 13-0835 PRPC
05-05-2015
STATE OF ARIZONA, Respondent, v. RICHARD DELBERT COX, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Karen Kemper Counsel for Respondent Richard Delbert Cox, Kingman Petitioner
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. CR2010-123144-001DT
The Honorable Bruce R. Cohen, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Karen Kemper
Counsel for Respondent
Richard Delbert Cox, Kingman
Petitioner
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Randall M. Howe and Judge Andrew W. Gould joined.
SWANN, Judge:
¶1 Petitioner Richard Delbert Cox petitions this court for review from the dismissal of his petition for post-conviction relief. We have considered the petition for review and, for the reasons stated, grant review and deny relief.
¶2 A jury convicted Cox of aggravated assault, and the trial court sentenced him to 7.5 years' imprisonment. We affirmed Cox's conviction and sentence on direct appeal. State v. Cox, 1 CA-CR 11-0071, 2012 WL 1861374 (Ariz. App. May 22, 2012) (mem. decision). Cox filed a pro se petition for post-conviction relief after his counsel found no colorable claims for relief. The trial court summarily dismissed the petition and Cox now seeks review. We have jurisdiction under Ariz. R. Crim. P. 32.9(c).
¶3 Cox argues that he was neither competent to stand trial nor competent when he appeared at a second settlement conference just before the start of trial; that the trial court erred when it failed to investigate his competency sua sponte; and that his purportedly disheveled appearance, erratic behavior and sleeping during trial adversely affected the jury and otherwise denied him a fair trial. We deny relief on these issues because Cox could have raised them on direct appeal. A claim a defendant could have raised on direct appeal is precluded. Ariz. R. Crim. P. 32.2(a). None of the exceptions under Rule 32.2(b) apply.
¶4 Cox also presents a number of claims of ineffective assistance of counsel. To state a colorable 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). To show prejudice, a defendant must show that there is a "reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
¶5 Cox first argues that his trial counsel was ineffective when he failed to timely inform Cox of a second plea offer that stipulated to the imposition of
probation. Cox complains that even though the offer was dated December 3, 2010, his counsel did not inform him of the offer until just before a settlement conference held the first day of trial testimony on December 14, 2010. We deny relief because Cox has failed to show that he suffered any prejudice. Regardless of any delay, the record shows that the trial court explained the details of the offer to Cox at the settlement conference. Cox informed the court that he had already discussed the offer with his counsel and had decided to reject the offer and proceed to trial. We also note that this was not the first time in this case that Cox had to weigh the benefits of accepting a plea offer versus the risks of proceeding to trial and losing. Cox had rejected another plea offer at a settlement conference three months before trial. Therefore, even if there was a delay related to the December 2010 offer, Cox suffered no prejudice.
¶6 Cox next argues that his trial counsel was ineffective when he failed to initiate proceedings pursuant to Rule 11 to determine if Cox was competent to stand trial. Cox does not argue that he was incompetent due to any mental illness, defect or disability. Cox argues that he was incompetent because the jail mistakenly released him just before trial, which resulted in him being homeless for several days. He argues that the jail then improperly "rebooked" him back into a portion of the facility where he was unable to sleep and he did not receive sufficient food. Cox argues that the mistaken release and subsequent rebooking resulted in sleep deprivation, lack of food and general exhaustion that made him unable to understand the proceedings or assist his counsel, and caused him to engage in "obviously erratic behavior," fall asleep during trial and have a disheveled appearance. For these same reasons, he argues that he was also not competent to participate in the second settlement conference, and that his rejection of a highly favorable offer shows that he was obviously incompetent.
¶7 We deny relief. First, defense counsel need not seek a Rule 11 competency evaluation based merely on a client's exhaustion, hunger or disheveled appearance. A person is legally "incompetent" to stand trial if
as a result of a mental illness, defect, or disability, the person is unable to understand the proceedings against him or her or to assist in his or her own defense. Mental illness, defect or disability means a psychiatric or neurological disorder that is evidenced by behavioral or emotional symptoms, including congenital mental conditions, conditions resulting from injury or disease and developmental disabilities as [statutorily] defined[.]
Ariz. R. Crim. P. 11.1; see also State v. Salazar, 128 Ariz. 461, 462 (1981) (explaining when a Rule 11 examination is necessary). Cox does not claim that he displayed or otherwise suffered from any mental illness, defect or disability in general nor
any specific psychiatric or neurological disorder. Further, that Cox rejected a highly favorable plea offer does not suggest that he was incompetent. "Competent choices are not to be equated with wise choices; competent defendants are allowed to make choices that may not objectively serve their best interests." State v. Kayer, 194 Ariz. 423, 434, ¶ 38 (1999).
¶8 Second, Cox cites nothing in the record to support his claims. He does not identify any portion of the record that reflects "obviously erratic behavior," difficulty in understanding the proceedings, difficulty in assisting his counsel, an inability to stay awake or a disheveled appearance. His own self-serving affidavit is not sufficient. See State v. Wilson, 179 Ariz. 17, 20 (App. 1993). Further, the record belies Cox's claims. As noted above, Cox participated in a settlement conference the first day of trial and there is nothing in the transcript to suggest that he was not competent. Cox also testified at length during trial and there is nothing in his testimony to suggest that he was not competent. Regarding his appearance at trial, one witness testified that Cox usually looked "pretty rough" but looked "pretty clean" at trial. Another witness noted that Cox appeared at trial "shaven" and with "his hair cut." For all of these reasons, Cox has failed to present a colorable claim of ineffective assistance of counsel based on the failure to seek a competency evaluation under Rule 11.
¶9 Cox also contends that his trial counsel was ineffective when he failed to adequately cross-examine witnesses at trial. More specifically, Cox argues that his counsel should have emphasized to the jury the various inconsistencies in witnesses' testimony, particularly any testimony that was not consistent with Cox's version of events. We deny relief because Cox concedes that all of the alleged inconsistencies came out during the direct and cross-examination of the witnesses. Therefore, any inconsistencies in the testimony were apparent to the jury, and counsel's failure to do more to emphasize those inconsistencies did not fall below objectively reasonable standards.
¶10 Finally, Cox argues that his counsel should have prepared a diagram of the premises to assist the jury in its consideration of the testimony regarding how and where the incident occurred. We deny relief on this issue as well. The trial court admitted photographs of the premises into evidence, and Cox does not claim that those photographs did not accurately portray the premises or the specific location of the attack. The failure to prepare a diagram duplicating information contained in photographs did not fall below objectively reasonable standards.
¶11 We grant review and, for the reasons set forth above, deny relief.