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State v. Hineman

Court of Appeals of Arizona, Second Division

November 22, 2013

The State of Arizona, Respondent,
v.
Benjamin Scott Hineman, Petitioner.

Not for Publication – See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.

Petition for Review from the Superior Court in Mohave County No. CR201000904 The Honorable Steven F. Conn, Judge.

COUNSEL

Matthew J. Smith, Mohave County Attorney By Gregory A. McPhillips, Deputy County Attorney, Kingman Counsel for Respondent.

Law Office of Daniel DeRienzo, P.L.L.C., Prescott Valley By Daniel J. DeRienzo Counsel for Petitioner.

Chief Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez and Judge Miller concurred.

MEMORANDUM DECISION

HOWARD, Chief Judge.

¶1 Benjamin Hineman petitions this court for 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, 166 P.3d 945, 948 (App. 2007). We find no such abuse here.

¶2 A summary of the facts is helpful to understand the proceedings below. In June 2010, Hineman was stopped for a traffic violation on Interstate 40 in Mohave County, Arizona. The officer issued a citation and returned Hineman's driver license to him, but based on Hineman's "nervousness" and "several discrepancies in [his] story and his body language, " the officer asked Hineman if he had any drugs or explosives, and if he could search his car; Hineman said "no" to both questions. The officer then requested a K-9 unit to conduct an "exterior sniff around the vehicle"; the K-9 unit arrived eleven minutes later. At the Rule 32 evidentiary hearing, Hineman testified that he did not feel free to leave after the officer had called the K-9 unit. But the officer testified that after he had completed issuing the citation and had told Hineman he was "free to go, " he did not tell Hineman he could not leave or in any way detain him, nor did Hineman ask to leave. Although Hineman testified that he told the officer there was marijuana in his car after the drug-detection dog had "scratched at" it, the officer testified that "before the dog even came out, [Hineman] said, 'I got marijuana in my car.'"

¶3 The drug dog alerted on Hineman's vehicle, and officers discovered in the center console "four individual baggies" containing "half an ounce or so" of marijuana, drug paraphernalia, and $19, 000 in cash "wrapped up . . . in bundles, and put in a zip-lock bag and sealed inside [a] shaving bag." Hineman initially told the officers he had traveled from Montana to Las Vegas, done some gambling and possibly some golfing, and was on his way to visit a friend in Phoenix. He later changed his story, telling the officers that the $19, 000 was money he had "collected" from three friends, and he "was going to Phoenix to buy about 25 pounds of marijuana" to take back to Montana. He stated that this was his fourth drug-buying trip. Subsequently, in a written statement attached to the presentence report, Hineman recanted his prior statement regarding the drug purchase, and stated the $19, 000 was a loan he had obtained from the family business, he had "lied to [his] father about what [he] had done" with the money, and he had intended to "spend [the] money aimlessly" with friends.

¶4 In 2011, pursuant to a plea agreement and a plea of no contest under North Carolina v. Alford, 400 U.S. 25 (1970), Hineman was convicted of attempted money laundering. At the change-of-plea hearing, Hineman told the trial court he understood the terms of the plea agreement, which his attorney had explained to him, and that he had not been forced or threatened to plead guilty. He also acknowledged that he understood he was entering a guilty plea pursuant to Alford, which the court explained as meaning "you're not going to be admitting that you actually committed [attempted money laundering]." The prosecutor provided a factual basis for attempted money laundering pursuant to A.R.S. §§ 13-2317(B) and 13-1001; Hineman was traveling to Phoenix to buy marijuana with $19, 000 in cash, which belonged to him and three of his friends. The court sentenced Hineman in accordance with the stipulated sentence in the plea agreement, placing him on probation for three years and ordering him to serve twenty days in jail as a condition of his probation.

¶5 Hineman subsequently filed a petition for post- conviction relief, arguing he was actually innocent; his conviction was unconstitutional based on the corpus delicti rule[1]; and trial counsel was ineffective in failing to file two motions to suppress evidence, one to suppress Hineman's statement to the police of his intent to purchase drugs (based on corpus delicti), and the other to suppress evidence "resulting from the illegal second detention after the traffic stop had concluded." In an unattested affidavit filed with his petition, Hineman stated, inter alia, "[t]he money was not going to be used to purchase marijuana"; he had "lied to police" when he had told them his friends had given him the money to purchase marijuana; he had "entered into the plea agreement out of ignorance and fear"; and, trial counsel was ineffective and had induced him to plead guilty by telling him he might be charged with theft if he disclosed the true source of the money.

¶6 In a December 2011 ruling, the trial court accurately summarized the case, and, as to Hineman's claim that his conviction was unlawful based on the corpus delicti rule, the court found "[t]here is nothing about a large amount of cash, even when coupled with an amount of marijuana entirely consistent with personal use, that would suggest the crime of money laundering." The court also concluded that "the part of [Hineman's] statement regarding being given money to come to Arizona to buy marijuana" would "probably" have been suppressed, likely disposing of the money laundering charge. The court further found that, based on trial counsel's reference to the "corpus delicti" issue at sentencing, it was "obvious" counsel had recognized the issue.[2]

¶7 But, relying on State v. Rubiano, 214 Ariz. 184, ¶ 14, 150 P.3d 271, 275 (App. 2007) (corpus delicti rule does not apply in context of guilty plea proceeding), the court concluded that "Rubiano stands for the proposition that a defendant who pleads guilty, even as an Alford plea at a hearing where he is not required to make an actual admission, cannot have his conviction vacated solely on the basis that there was no other independent corroboration of the crime under the corpus delicti rule." Finally, the court concluded that although Hineman had not raised a colorable claim of actual innocence, he had raised colorable claims of ...


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