February 10, 2014
The State of Arizona, Respondent,
Anthony Greg LaPointe, Petitioner.
Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR2009048332001SE The Honorable Julie P. Newell, Judge Pro Tempore
David Goldberg, Fort Collins, Colorado Counsel for Petitioner
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred.
¶1 Petitioner Anthony LaPointe 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, 166 P.3d 945, 948 (App. 2007). LaPointe has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, LaPointe was convicted of two counts of aggravated assault. The trial court imposed enhanced, aggravated, consecutive sentences totaling twenty-four years' imprisonment. LaPointe's convictions and sentences were affirmed on appeal. State v. LaPointe, No. 1 CA-CR 10-0282 (memorandum decision filed May 12, 2011). He thereafter initiated a proceeding for post-conviction relief, arguing in his petition, inter alia, that he had received ineffective assistance of counsel based on counsel's having failed to convey a plea offer to him and that newly discovered material facts entitled him to relief. The trial court summarily denied relief on July 30, 2012. The trial court subsequently granted appointed counsel's motion to withdraw and appointed new counsel, who also subsequently withdrew. In September 2012, the court denied LaPointe's further request for appointment of counsel and for an extension of time to file a petition for review. LaPointe, however, filed a "[n]otice of delayed appeal from the superior court" on October 22, 2012.
¶3 After the court denied his above requests, LaPointe filed another notice of post-conviction relief, checking boxes on the form indicating claims of newly discovered material facts, significant change in the law, and that failure to timely file a notice of postconviction relief or appeal was not his fault. He further explained, "Counsel failed to state a colorable claim and also failed to file petition of review w[ith] state court, as well as file an extension of time so the courts could appoint counsel." The trial court dismissed the notice.
¶4 In April 2013, a new attorney filed a notice of appearance in Division One of this court, as well as a motion to consolidate the two petition-for-review proceedings, which apparently had been pending simultaneously . The court denied the motion to consolidate, but allowed LaPointe to "file a compliant petition for review in [1 CA-CR 12-0653 PRPC] on or before May 21, 2013, " thereby implicitly granting LaPointe an extension of time in which to file a petition for review in his first proceeding.
¶5 In that petition for review, LaPointe argues the trial court abused its discretion by summarily dismissing his claims of ineffective assistance of counsel and newly discovered evidence. He maintains the court should not have "resolved . . . critical factual issues without ever hearing in person and under oath from a single witness."
¶6 Specifically, as to his claim of ineffective assistance, LaPointe asserts "the record is far from clear . . . that [he] was ever advised of a purported five-year plea offer and the trial court abused its discretion in determining he had not stated a colorable claim and in dismissing his petition without a hearing. To establish a claim of ineffective assistance of counsel, a defendant must show counsel's performance was deficient under prevailing professional norms and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). A trial court properly dismisses a post-conviction relief petition without a hearing if, after reviewing the claims presented, it determines the petitioner has stated no claim that "presents a material issue of fact or law which would entitle the defendant to relief under Rule 32. Ariz. R. Crim. P. 32.6(c).
¶7 In this case, LaPointe alleged in his petition for post- conviction relief that the state had offered a plea "with a sentencing range of 5 to 15 years in prison" of which he was unaware until "a pretrial hearing after the offer had already expired." With its response to LaPointe's petition, the state filed a copy of a letter written by LaPointe to his attorney as well as an affidavit from that attorney. In the letter, LaPointe stated, "There is no way that I will sign that piece of paper for 7.5, that is not even a plea offer!" And in his affidavit, counsel averred that he had informed LaPointe of "the plea offer in this case" and LaPointe had "specifically rejected the offer" in the letter.
¶8 In his reply to the state's response, LaPointe altered his claim, asserting he "did not comprehend the nature of the charges against him" and relying on a joint pretrial statement filed with the reply that mentioned a plea offer with a "stipulation to 5.0 years." In his reply, he argued he had "heard the prosecutor mention an offer of 11.25" but had not been presented with a written offer. And he stated he had not rejected the five-year plea offer in the letter, but he also stated "the offer was not conveyed by defense counsel until six days later, " presumably referring to six days after he claimed the state made the offer in January 2010. None of these claims were supported by affidavit, nor did LaPointe state or aver that he would have accepted a five-year plea agreement had it existed or had he been aware of it.
¶9 We cannot say the trial court abused its discretion in rejecting LaPointe's unsupported claim, as raised in his petition for post-conviction relief, that counsel did not inform him of a plea offer. LaPointe provided no affidavit or other evidence to support his claim, see Ariz. R. Crim. P. 32.5, and the evidence submitted by the state plainly contradicts it. Furthermore, the trial court was not required to consider LaPointe's additional claims first raised in his reply. See State v. Lopez, 223 Ariz. 238, ¶ 7, 221 P.3d 1052, 1054 (App. 2009) (trial court need not consider claims of ineffective assistance of counsel first raised in petitioner's reply).
¶10 Nor can we say the trial court abused its discretion in determining LaPointe had not stated a colorable claim of ineffective assistance of counsel, as LaPointe asserts. As previously noted, LaPointe did not provide the court with any affidavits on this point, and the only evidence submitted, the pretrial statement, sheds little light on the events before trial. On the record before us, in the absence of a clear, sworn statement from LaPointe about the plea offers he believed had been made and not communicated to him, we cannot say the court abused its discretion in concluding LaPointe had failed to show counsel's performance was deficient.
¶11 Furthermore, "[t]o establish prejudice in the rejection of a plea offer, a defendant must show 'a reasonable probability that, absent his attorney's deficient advice, he would have accepted the plea offer' and declined to go forward to trial." State v. Donald, 198 Ariz. 406, ¶ 20, 10 P.3d 1193, 1201 (App. 2000), quoting People v. Curry, 687 N.E.2d 877, 888 (Ill. 1997); see also State v. Jackson, 209 Ariz. 13, ¶ 2, 97 P.3d 113, 114 (App. 2004) ("A colorable claim of postconviction relief is 'one that, if the allegations are true, might have changed the outcome.'"), quoting State v. Runningeagle, 176 Ariz. 59, 63, 859 P.2d 169, 173 (1993). In this case, as noted above, LaPointe has not avowed he would have accepted a five-year plea offer, even had it been offered, particularly in light of his rejection of a 7.5-year offer.
¶12 LaPointe also claims the trial court abused its discretion in rejecting his claim that newly discovered evidence entitles him to relief. A petitioner is entitled to relief pursuant to Rule 32.1(e) only if he shows that "[n]ewly discovered material facts probably exist and such facts probably would have changed the verdict or sentence." And, to be entitled to an evidentiary hearing, a petitioner must present a colorable claim. Jackson, 209 Ariz. 13, ¶ 2, 97 P.3d at 114. Applying these rules together, a petitioner is entitled to an evidentiary hearing on a claim of newly discovered evidence if he has "plausibly show[n]" that newly discovered facts exist and probably would have changed the verdict. State v. Krum, 183 Ariz. 288, 292-93, 903 P.2d 596, 600-01 (1995) (combining rules); see also State v. Bilke, 162 Ariz. 51, 52-53, 781 P.2d 28, 29-30 (1989) (colorable claim of newly-discovered evidence requires showing "it would likely have altered the verdict, finding, or sentence if known at the time of trial").
¶13 In this case, the trial court did not abuse its discretion in finding LaPointe had not "plausibly show[n]" that newly discovered evidence existed that would have changed the outcome of his trial. Krum, 183 Ariz. at 292-93, 903 P.2d at 600-01. Third-party affidavits of recantation "will seldom entitle a Rule 32 petitioner to relief, " Id. at 293, 903 P.2d at 601. And, we cannot say the court abused its discretion in finding the affidavit presented here incredible.
¶14 The affidavit LaPointe presented was executed by J.M., whom LaPointe met while incarcerated. J.M. averred that while he and LaPointe had been on the way to "get . . . food" the victim, who was incarcerated in another unit at the same prison, called out to LaPointe and "began to talk [with him] through the fence." J.M. stated the victim had told LaPointe he was sorry for what had happened on the night of the crime, he did not "remember anything of that night, " and he had only "lied to the courts" because "he was scared that he would [be] charged." J.M. also described later interactions between LaPointe and the victim in which the victim became upset with LaPointe and "tried to convince [him] not [to] appeal his conviction" and "pester[ed]" LaPointe.
¶15 With its response, the state filed an affidavit from the prison warden, in which the warden averred that the fenced yards of the units occupied by LaPointe and the victim respectively are separated by a "spline" consisting of two parallel fences "approximately 16 feet apart." Each fence of the spline is "approximately 32 feet" from the fence of each yard. Thus, the warden stated, the closest an inmate in one yard could be to an inmate in the other yard is "approximately 80 feet." And, he explained "[i]t is a violation of Arizona Department of Corrections policy for an inmate from one yard to speak to an inmate in the second yard" and "[i]nmates who approach the fence separating the two yards are instructed to immediately walk away." LaPointe included with his reply to the state's response what appears to be a drawing of the prison yard. In the drawing he includes the "spline, " labeled as fifteen feet across, and areas between the spline and each fence, labeled as approximately ten to eleven feet wide.
¶16 In sum, the evidence of the layout of the prison yards at best places the victim and LaPointe some forty feet apart during the purported conversation about their respective culpability in the crime for which LaPointe was convicted. Given the nature of the conversation and the distance between the two yards, we cannot say the trial court abused its discretion in finding J.M.'s account did not "plausibly show" that newly discovered facts existed that would have changed the outcome at trial. Krum, 183 Ariz. at 292-93, 903 P.2d at 600-01.
¶17 For all these reasons, although we grant the petition for review, we deny relief.