Opinion
No. 2 CA-CR 2020-0092-PR
11-09-2020
THE STATE OF ARIZONA, Respondent, v. DAVID FIGUEROA, Petitioner.
COUNSEL Kent P. Volkmer, Pinal County Attorney By Thomas C. McDermott, Appellate Bureau Chief, Florence Counsel for Respondent David Figueroa, Florence In Propria Persona
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NOT FOR PUBLICATION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. 31.19(e). Petition for Review from the Superior Court in Pinal County
No. S1100CR201601411
The Honorable Steven J. Fuller, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Kent P. Volkmer, Pinal County Attorney
By Thomas C. McDermott, Appellate Bureau Chief, Florence
Counsel for Respondent David Figueroa, Florence
In Propria Persona
MEMORANDUM DECISION
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. VÁSQUEZ, Chief Judge:
¶1 David Figueroa seeks review of the trial court's order denying 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). Figueroa has not met his burden of establishing such abuse here.
Our supreme court amended the post-conviction relief rules, effective January 1, 2020. Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019). "The amendments apply to all cases pending on the effective date unless a court determines that 'applying the rule or amendment would be infeasible or work an injustice.'" State v. Mendoza, 249 Ariz. 180, n.1 (App. 2020) (quoting Ariz. Sup. Ct. Order R-19-0012). "Because it is neither infeasible nor works an injustice here, we cite to and apply the current version of the rules." Id.
¶2 After a jury trial, Figueroa was convicted of transportation of dangerous drugs for sale. The trial court sentenced him to a mitigated eight-year term of imprisonment. This court affirmed his conviction and sentence on appeal. State v. Figueroa, No. 2 CA-CR 2017-0411, ¶¶ 1, 7 (Ariz. App. July 26, 2018) (mem. decision).
¶3 In February 2019, Figueroa filed a petition for post-conviction relief. He argued that his trial counsel had rendered ineffective assistance related to the state's plea offer made during early disposition court. Specifically, Figueroa asserted that counsel had failed to explain "the pros and cons of accepting or rejecting the plea," "that this offer was the best possible offer [Figueroa] would receive," "that [Figueroa] faced a sentence of between five and 15 years flat time if he were convicted at trial," or "the strength of the state's case against him." The trial court ordered an evidentiary hearing, at which Figueroa further testified that his counsel had failed to convey to him—and advise him regarding—all the plea offers extended by the state and to disclose the police reports to him.
The trial court extended the time for Figueroa to file a petition until February 15, 2019. Figueroa's petition, however, was not filed until February 25, 2019. See A.R.S. § 13-4234(G) ("The time limits are jurisdictional, and an untimely filed notice or petition shall be dismissed with prejudice."); see also State v. Bigger, No. 2 CA-CR 2019-0012-PR, ¶¶ 14-18, 2020 WL 6054592 (Ariz. Ct. App. Oct. 14, 2020) (describing § 13-4234(G) as constitutional insofar as it is consistent with rules on timing issues). The court nonetheless addressed the merits of his claims, and in doing so, implicitly granted an additional extension. See Ariz. R. Crim. P. 32.7(a)(1)(B) (court has discretion to grant extensions for filing of petition). We likewise address the merits of the claims.
Although Figueroa's argument in his petition focused on a plea offer that was purportedly made during early disposition court, no such proceeding appears in the record. Nonetheless, the state agreed that plea offers were extended to Figueroa in approximately June 2016, January 2017, and April 2017.
¶4 The trial court subsequently denied the petition. It noted that both Figueroa and his trial counsel testified at the evidentiary hearing and that they offered "substantially different version[s] of the events." The court found counsel's version was "more credible" than Figueroa's, counsel had conveyed all the plea offers to Figueroa, counsel had discussed with Figueroa the likelihood of success at trial, counsel had timely disclosed the police reports to Figueroa, and counsel had discussed with Figueroa the sentencing range if convicted at trial. Accordingly, the court concluded that "the assistance of trial counsel was [not] in any way deficient." This petition for review followed.
¶5 To prevail on a claim of ineffective assistance of counsel, a petitioner must establish both "that counsel's performance fell below reasonable standards and that the deficient performance prejudiced him." See Roseberry, 237 Ariz. 507, ¶ 10 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006). Under the first prong of the Strickland test, "we must presume 'counsel's conduct falls within the wide range of reasonable professional assistance' that 'might be considered sound trial strategy.'" State v. Denz, 232 Ariz. 441, ¶ 7 (App. 2013) (quoting Strickland, 466 U.S. at 689).
¶6 On review, Figueroa reasserts his claims of ineffective assistance of trial counsel. He maintains that the trial court erred in finding "insufficient evidence" to establish counsel's "deficiency or of any prejudice therefrom." Figueroa relies on his affidavit filed with his Rule 32 petition and his testimony at the evidentiary hearing as evidence that counsel had failed to explain the plea offers, the strength of the state's case, and the consequences of going to trial. He also challenges counsel's testimony to the contrary, pointing out that counsel relied upon his "usual practice" rather than his memory from what actually occurred in this case.
The trial court concluded that Figueroa had failed to establish deficient performance. It did not, nor was it required, to address any resulting prejudice. See Bennett, 213 Ariz. 562, ¶ 21. --------
¶7 Figueroa's arguments on review amount to a request that we reweigh the evidence presented at the evidentiary hearing. However, that is not our function. See State v. Fritz, 157 Ariz. 139, 141 (App. 1988) (trial court sole arbiter of credibility of witnesses in Rule 32 evidentiary hearing). Rather, "[w]e examine a trial court's findings of fact after an evidentiary hearing to determine if they are clearly erroneous." State v. Berryman, 178 Ariz. 617, 620 (App. 1994). In doing so, we view the evidence presented at the evidentiary hearing in the light most favorable to sustaining the court's ruling. State v. Sasak, 178 Ariz. 182, 186 (App. 1993).
¶8 At the evidentiary hearing, Figueroa's trial counsel and the prosecutors testified that there had been three plea offers extended in this case. Counsel stated that he had conveyed all those offers to Figueroa but Figueroa had wanted to proceed with trial. Counsel also avowed that he had discussed with Figueroa the likelihood of success at trial and the potential prison sentence if convicted at trial. However, counsel explained that Figueroa had been "very adamant about protesting his innocence." In addition, counsel stated that, based on his usual practice, he had disclosed the police reports to Figueroa early in the proceedings.
¶9 Although Figueroa's trial counsel had to at times rely on his usual practice when testifying because he could not remember the specifics of this case, that does not undercut the trial court's credibility determination. See Sasak, 178 Ariz. at 186; see also State v. Bible, 175 Ariz. 549, 609 (1993) ("The trial judge is in the best position to evaluate credibility and accuracy, as well as draw inferences, weigh, and balance."). Indeed, Figueroa similarly could not remember some of the details surrounding the plea offers and his discussions with counsel from years before. In addition, although Figueroa suggests that he "did not speak English well" and therefore could not understand conversations with counsel, he admitted at the evidentiary hearing that he "underst[oo]d English well." His counsel also testified that they spoke in English to one another and that Figueroa "did not exhibit any sense of not understanding what [he] was saying."
¶10 The trial court's findings of fact are therefore supported by the record. See Berryman, 178 Ariz. at 620. And based on those findings, the court did not abuse its discretion in concluding that Figueroa had failed to establish that counsel's performance fell below reasonable standards. See Roseberry, 237 Ariz. 507, ¶ 7.
¶11 Accordingly, we grant review but deny relief.