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No. 2 CA-CR 2018-0141-PR (Ariz. Ct. App. Sep. 10, 2018)

No. 2 CA-CR 2018-0141-PR



COUNSEL Brian M. McIntyre, Cochise County Attorney, Bisbee Counsel for Respondent Janelle A. Mc Eachern, Chandler Counsel for Petitioner

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. S0200CR201300410
The Honorable James L. Conlogue, Judge


COUNSEL Brian M. McIntyre, Cochise County Attorney, Bisbee
Counsel for Respondent
Janelle A. Mc Eachern, Chandler
Counsel for Petitioner


Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:

¶1 Antonio Molina seeks review of the trial court's denial, after an evidentiary hearing, of his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). We find no such abuse here.

¶2 After a jury trial in November 2014, Molina was convicted of first-degree murder and was sentenced to a prison term of natural life. We affirmed his conviction and sentence on appeal. State v. Molina, No. 2 CA-CR 2015-0026 (Ariz. App. Feb. 5, 2016) (mem. decision). Molina sought post-conviction relief in August 2016, asserting trial counsel, Joseph DiRoberto, was ineffective for failing to inform him he would receive a mandatory sentence of natural life in prison if he was convicted of first-degree murder at trial, and maintaining he would have accepted the state's plea offer for second-degree murder had he known this.

¶3 At an October 30, 2014 hearing, the state offered to accept Molina's guilty plea to second-degree murder. At the state's request, the trial court then conducted a hearing pursuant to State v. Donald, 198 Ariz. 406 (App. 2000). The state explained that if Molina were convicted of first-degree murder at trial, he would "fac[e] life in prison, and if he [was] convicted of second[-]degree murder, the presumptive term is 16 years; the maximum is 25 years and the minimum term is 10 years." The state added that DiRoberto had "already conveyed that" to Molina, after which DiRoberto agreed he had nothing further to add. Molina then expressly rejected the state's plea offer and the case proceeded to trial.

¶4 After Molina was convicted of first-degree murder, but before he was sentenced, DiRoberto filed a motion for new trial asserting that "the prosecutor, undersigned counsel, and the court all failed to properly advise [Molina] at the 'Donald' hearing that he faced a mandatory sentence of 'natural life' in prison if he went to trial and was convicted of first-degree murder." The trial court denied Molina's motion, noting "I really believe that there was no chance at all that Mr. Molina would take any plea, of any kind at that point in the litigation [at the Donald hearing]."

¶5 In February 2018, the trial court conducted an evidentiary hearing to address Molina's Rule 32 claim that DiRoberto had been ineffective in failing to advise him he would face a mandatory natural life term if convicted at trial. At that hearing, DiRoberto testified that before trial he had told Molina that if convicted of first-degree murder, "he would be facing either a life sentence or natural life sentence in prison." He had explained to Molina that a life sentence meant that after serving twenty-five calendar years in prison, he would be "eligible for release on some parole or community supervision or some other basis," while natural life meant he would remain in prison "for the rest of [his] natural life." DiRoberto further testified that, because he had incorrectly relied on "old law prior to 2012," he had "improperly" advised Molina "that he was facing a life sentence or a natural life sentence" for a first-degree murder conviction, rather than correctly advising him he would receive a mandatory natural life sentence, which "was the law in effect at the time that his case occurred." See A.R.S. § 13-752(A); 2012 Ariz. Sess. Laws, ch. 207, § 3.

The underlying offense occurred in 2013.

¶6 At the conclusion of the evidentiary hearing, the trial court ruled from the bench, noting it had "put a lot of thought into" this matter. It concluded that DiRoberto had fallen below prevailing professional standards by giving Molina erroneous advice, but that Molina had failed to demonstrate prejudice because it was not convinced Molina would have accepted "any kind of plea." Noting that Molina had always indicated he felt that his actions in this case were justified, a fact Molina had reaffirmed at the evidentiary hearing, the court concluded "[t]his was a case that needed to be tried. It's an aggravated case, but one in which a jury could have found justification."

¶7 To state a colorable claim of ineffective assistance of counsel, Molina "must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced [him.]" State v. Bennett, 213 Ariz. 562, ¶ 21 (2006); see Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984). To show prejudice in this context, a defendant must demonstrate a reasonable probability that, absent his attorney's deficient conduct, he would have accepted the plea offer rather than going to trial. Donald, 198 Ariz. 406, ¶ 20. Whether counsel rendered ineffective assistance is a mixed question of fact and law. See Strickland, 466 U.S. at 698. "[W]e defer to the trial court's factual findings but review de novo the ultimate legal conclusion." State v. Denz, 232 Ariz. 441, ¶ 6 (App. 2013) (quoting In re MH2010-002637, 228 Ariz. 74, ¶ 13 (App. 2011)).

¶8 On review, Molina argues the trial court abused its discretion by rejecting his claim that he was prejudiced by DiRoberto's deficient conduct. He points out that DiRoberto "freely admitted" he provided erroneous advice, reasserts he would have accepted the state's plea offer if he had been advised properly, and requests that he receive a new trial and that he be permitted to consider "a plea, if one is offered to him." Molina asserts "the issue here is not [his] belief in his innocence or speculation on whether he would or would not have accepted a plea agreement," but instead contends that, because DiRoberto "provided him with erroneous advice," it necessarily follows that he was prejudiced "by not being informed of his increased sentencing exposure" at trial. He essentially argues that once he established that DiRoberto provided erroneous advice, and once he testified that that very advice "impacted his decision on whether or not to plead or to proceed to trial," the prejudice prong of his claim of ineffective assistance was satisfied. See Bennett, 213 Ariz. 562, ¶ 21. This proposition, however, is flatly contradicted by Donald, which requires that a defendant show he would have accepted the plea offer absent counsel's deficient advice. 198 Ariz. 406, ¶ 20.

¶9 Although Molina does not appear to challenge the evidence the trial court relied upon in denying his claim, we nonetheless note that we "accord great deference to the trial court's finding of lack of prejudice in ineffective assistance of counsel cases." State v. Waitkus, 161 Ariz. 387, 389 (App. 1989). At the evidentiary hearing, DiRoberto testified that although Molina "might have . . . considered [the] plea offer more seriously" had he been properly advised, by the time the Donald hearing took place, "we were committed that we were going to go to trial. [Molina] didn't want the plea agreement, and we were committed to litigating this issue." Additionally, Molina testified that no one, including DiRoberto, had guaranteed him he would "walk out in twenty[-]five years" were he convicted of first-degree murder at trial. He added that he had consistently felt his actions in this case were justified, a factor the trial court apparently found persuasive in its prejudice analysis. Moreover, the prosecutor testified that it was clear to him at the Donald hearing that Molina "was not going to take the [plea] deal," and acknowledged that it was apparent throughout the one-year "course of the case" that Molina was "all in" on a justification defense, either "self-defense or defense of another."

To the extent Molina asserts in his affidavit that the prosecutor "mentioned [at the Donald hearing] the natural life or 25 years if I went to trial," the transcript of that hearing does not support his claim. --------

¶10 The trial court clearly rejected Molina's testimony, which was at the heart of his prejudice claim, that had he been properly advised he would have pled guilty to second-degree murder. And, we are mindful that the trial court, not this court, "is the sole arbitrator of the credibility of witnesses" in post-conviction proceedings. State v. Fritz, 157 Ariz. 139, 141 (App. 1988). According the court the deference to which it is due in determining that Molina failed to establish he was prejudiced by DiRoberto's deficient performance, see Waitkus, 161 Ariz. at 389, we cannot say the court abused its discretion in denying relief.

¶11 We grant review but deny relief.