United States District Court, D. Arizona
THE
HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
HONORABLE DEBORAH M. FINE, UNITED STATES MAGISTRATE JUDGE
David
Quintin Melendez filed a Petition for Writ of Habeas Corpus
(“Petition”) in this Court challenging his
convictions and sentences in Maricopa County Superior Court.
Melendez alleges he received ineffective assistance of trial
counsel during plea negotiations. (Doc. 1) A response and a
reply have been filed (Docs. 14, 17), and the matter is ripe
for decision. As described below, the undersigned recommends
that Melendez's Petition should be denied and dismissed
with prejudice.
Background
In
April 2012, Melendez was indicted in Maricopa County Superior
Court for one count of aggravated assault and one count of
misconduct involving weapons. (Doc. 14, Ex. A) In June 2012,
the State filed an allegation of historical priors and an
allegation of prior felony convictions; both allegations
involved convictions from Florida. (Doc. 14, Exs. B, D) There
had been a pre-indictment settlement conference that produced
no plea offer because Melendez had refused an offer at an
even earlier point. (Doc. 14, Ex. NN) At the settlement
conference, Melendez expressed no intention to plead guilty.
(Id.)
In
August 2012, at the Final Pretrial Conference, the trial
judge asked why Petitioner had not been offered a plea
agreement. (Doc. 14, Ex. OO) During discussions that followed
on the record with the trial judge, Melendez indicated that
he “would consider taking the three and a half [3.5
years which was offered and rejected by Melendez before the
settlement conference] just to spare everybody from going to
trial or whatnot.” (Id.) Following the
conversation at the Final Pretrial Conference, the prosecutor
emailed Melendez's counsel with offer for a sentence of 5
to 7.5 years. (Doc. 14, Ex. E) The prosecutor wrote that this
offer “cuts 7.5 years off the top of the range.”
(Id.)
Melendez
did not accept the State's offer, and the case proceeded
to trial in September 2012. (Doc. 14, Ex. F) At the
conclusion of a six-day trial, the jury found Melendez guilty
and also found one aggravating factor. (Doc. 14, Exs. F, G)
Subsequently, the prosecutor emailed Melendez's counsel
and informed him that the State intended to argue that
Melendez's Florida convictions were dangerous. (Doc. 14,
Ex. H) If the Florida convictions were dangerous under
Arizona law, the sentencing range Melendez faced would be
higher than counsel had discussed with each other during plea
negotiations. (Doc. 14, Ex. I) The prosecutor acknowledged
that he only recently had researched the priors; the
prosecutor also acknowledged that he and defense counsel had
not previously discussed the Florida priors being dangerous
under Arizona law. (Doc. 14, Ex. H) Melendez, through
counsel, moved to strike the priors because the State had
previously indicated that it would not seek to show that the
priors were dangerous. (Doc. 14, Exs. I, ZZ at 38-39) The
Superior Court did not strike the priors and sentenced
Melendez to concurrent, aggravated terms of 12.5 years for
the aggravated assault charge and 4.5 years for the
misconduct involving weapons charge, resulting in a total,
effective prison sentence of 12.5 years. (Doc. 14, Ex. J)
Melendez
timely appealed and argued the Superior Court should have
severed the two counts and also that the Superior Court
imposed unlawful sentences. (Doc. 14, Exs. K, L) At the
conclusion of briefing, the Arizona Court of Appeals affirmed
Melendez's convictions and sentences. (Doc. 14, Exs. M,
N, O) The Arizona Supreme Court denied review of his
petition. (Doc. 14, Exs. P, Q, R)
Melendez
then timely initiated post-conviction relief and the Superior
Court appointed him counsel. (Doc. 14, Exs. S, T) In his
post-conviction petition, Melendez argued that he received
ineffective assistance of counsel because his trial counsel
had misrepresented the sentence he was facing. (Doc. 14, Ex.
U) Melendez filed an affidavit from his trial counsel with
his Petition that acknowledged error insofar as advising
Melendez during plea negotiations that “if convicted at
trial the most he faced was 5-15 years dangerous since it
appeared as through [sic] the State did not seek to prove the
prior conviction as a dangerous offense. Had I realized the
State sought to prove the prior as a dangerous prior, I would
have advised him that he faced a repetitive dangerous
sentencing range.” (Doc. 14, Ex. X ¶6) Similarly,
in Melendez's affidavit, he swore that defense counsel
“advised that the State could not use my priors against
me for sentencing enhancement purposes because they were
non-dangerous offenses and the most I could receive if
convicted at trial was 5-15 years.” (Doc. 14, Ex. W
¶5)
At the
conclusion of briefing, the Superior Court conducted an
evidentiary hearing where Melendez and his trial counsel both
testified. (Doc. 14, Exs. Y, Z, AA, BB) The Superior Court
denied Melendez's Petition on the record. (Doc. 14, Exs.
BB, ZZ)
Melendez
timely initiated appellate review. (Doc. 14, Ex. CC) The
Arizona Court of Appeals ordered the Superior Court to
supplement the record and then remanded the matter so the
Superior Court could make specific findings of fact and
conclusions of law. (Doc. 14, Exs. DD, EE) The Superior Court
ordered the parties to submit proposed findings and
conclusions and then adopted the proposed findings and
conclusions submitted by the State. (Doc. 14, Exs. FF, GG,
HH, II, JJ, KK)
On
further review, the Arizona Court of Appeals summarized the
Superior Court's evidentiary hearing and subsequent
ruling as follows:
At the hearing, Melendez's trial lawyer testified that
the State offered an agreement by which Melendez would plead
guilty to a Class 3 dangerous felony, with a stipulated
sentence of between five and seven and a half years. The
lawyer conceded he mistakenly advised Melendez that he might
receive the same sentence after trial; in reality, a
conviction on a dangerous Class 3 felony with a prior
dangerous offense conviction would subject a defendant to a
sentence of twice that term, according to the lawyer. The
lawyer also testified, however, that he told Melendez that if
the State were to allege a prior dangerous conviction, he
might be sentenced to as long as 15 years after a trial. He
flatly denied telling Melendez that if he rejected the plea
offer and were to be convicted, he would receive the same
sentence as in the plea offer. Further, he testified that
Melendez never told him that he would be willing to accept a
plea that would result in a sentence of more than five years
in prison.
During the hearing, Melendez's trial counsel was
cross-examined about a declaration he signed in support of
Melendez's petition for post-conviction relief. In that
declaration, the lawyer stated that Melendez rejected the
7.5- year offer “based on the erroneous belief that he
could receive the same sentence if he proceeded to
trial.” In the declaration, the lawyer stated that
documents he received in response to discovery requests
revealed that Melendez's prior armed-robbery felony
constituted a dangerous felony. He further stated,
“Unfortunately, and to Melendez' detriment, I
discussed plea negotiations with Melendez based on my
impression that his Florida prior could be a non-dangerous
offense, dangerous offense, or multiple offenses.” He
elaborated: “During plea negotiations, I ...