Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court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, ...