Opinion
No. 2 CA-CR 2017-0426-PR
05-08-2018
THE STATE OF ARIZONA, Respondent, v. STEPHEN JOSEPH MOCCO, Petitioner.
Stephen Mocco, 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NOT FOR PUBLICATION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 Cochise County
No. CR200300529
The Honorable James L. Conlogue, Judge
REVIEW GRANTED; RELIEF DENIED
Stephen Mocco, Florence
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred.
STARING, Presiding Judge:
¶1 Petitioner Stephen Mocco 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 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 (App. 2007). Mocco has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Mocco was convicted of attempted robbery, robbery, two counts of burglary, three counts of aggravated assault, one count of attempted sexual abuse, one count of attempted sexual assault, three counts of kidnapping, and four counts of sexual assault. The trial court imposed various presumptive, partially aggravated, and aggravated sentences, many to be served consecutively, totaling more than 100 years' imprisonment. This court affirmed his convictions and sentences on appeal. State v. Mocco, No. 2 CA-CR 2004-0295 (Ariz. App. Apr. 28, 2006) (mem. decision). Mocco subsequently sought and was denied post-conviction relief, and this court granted review, but denied relief on review. State v. Mocco, No. 2 CA-CR 2014-0255-PR (Ariz. App. Nov. 17, 2014) (mem. decision).
¶3 In June 2017, Mocco again sought post-conviction relief, arguing he had received ineffective assistance of trial counsel based on his discovery of an email between trial counsel and the prosecutor "discussing a plea bargain which Mocco was never apprised of." The trial court summarily denied relief, concluding Mocco had not stated a colorable claim of ineffective assistance because he had not shown prejudice. It stated, "It is clear Defendant would not have accepted a plea to 60 years imprisonment."
¶4 On review, Mocco contends the trial court erred as a matter of law by finding he would not have accepted the plea and denying relief based on a resulting lack of prejudice. But Mocco raised this claim in an
untimely, successive Rule 32 proceeding, and claims of ineffective assistance cannot be raised in such a proceeding. See Ariz. R. Crim. P. 32.1(a), 32.4(a)(2)(A). And Rule 32.1(e), which governs claims of newly discovered evidence, does not contemplate a claim of newly discovered evidence of ineffective assistance of counsel, and is instead restricted to "newly discovered material facts . . . [that] probably would . . . change[] the verdict or sentence."
¶5 Even could Mocco's claim be raised in an untimely proceeding, however, we agree with the trial court that he has not established a colorable claim. "To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney's representation may be found constitutionally deficient if he or she fails to timely communicate a formal plea offer to a client. Missouri v. Frye, 566 U.S. 134, 147 (2012). To establish prejudice in this context, "a defendant must show 'a reasonable probability that, absent his attorney's deficient advice, he would have accepted the plea offer.'" State v. Donald, 198 Ariz. 406, ¶ 20 (App. 2000), quoting People v. Curry, 687 N.E.2d 877, 888 (Ill. 1997).
¶6 In this case, the email between defense counsel and the state discussed the possibility of a future plea offer in the abstract. The exchange was as follows:
Defense counsel: If you were really feeling badly, you'd make an offer . . . Prosecutor: If I did, Mr. Mocco would not like it. Defense counsel: What would it be? Prosecutor: 60 years - 20 years per victim
Thus, on the record before us, there was no formal offer; the possibility of an offer was merely discussed. Even were we to accept that such a discussion should have been disclosed to Mocco, he did not state affirmatively he would have accepted such an offer. Rather, in his affidavit filed with his petition for post-conviction relief, he averred, "Had trial counsel . . . properly investigated Arizona's sentencing scheme and advised Mocco accordingly, he would have advised counsel to continue with plea negotiations consistent with Arizona's sentencing schemes, negotiated a
proper plea, and declined to go to trial." Thus, the trial court properly concluded Mocco had not established prejudice.
¶7 Therefore, although we grant the petition for review, we deny relief.