State v. Bennett

• Decision Date: 09 November 2006
• Docket Number: No. CR-05-0533-PR.,CR-05-0533-PR.
• Citation: State v. Bennett, 146 P.3d 63, 213 Ariz. 562 (Ariz. 2006)
• Parties: STATE of Arizona, Respondent, v. Donna Jean BENNETT, Petitioner.
• Court: Arizona Supreme Court

146 P.3d 63

213 Ariz. 562

STATE of Arizona, Respondent, v.Donna Jean BENNETT, Petitioner.

No. CR-05-0533-PR.

Supreme Court of Arizona, En Banc.

November 9, 2006.

COPYRIGHT MATERIAL OMITTED

Barbara Lawall, Pima County Attorney by Taren M. Ellis, Deputy County Attorney, Tucson, Attorneys for State of Arizona.

Adam N. Bleier, Attorney at Law by Adam N. Bleier and Arizona Justice Project by Lawrence A. Hammond, Chairperson, Tucson, Attorneys for Donna Jean Bennett.

OPINION

McGREGOR, Chief Justice.

¶ 1We granted review to consider whether Arizona Rule of Criminal Procedure 32.2.a(3)¹ precludes defendantDonna Jean Bennett's claim of ineffective assistance of appellate counsel and, if it does not, whether Bennett has stated a colorable claim.Bennett bases her ineffective assistance of counsel claim on appellate counsel's failure to challenge the sufficiency of the evidence on the causation element of her felony murder conviction.We hold that Bennett's claim is not precluded and that she has stated a colorable claim of ineffective assistance of appellate counsel.

I.

¶ 2Donna Jean Bennett, mother of then two-year-old Greyson Bennett, left Greyson with her roommate, John Sweet, while she was at work during the evening of January 30 and the morning of January 31, 1995.Near midnight on January 30, Bennett spoke with Sweet, who told her that Greyson had bruised his head by hitting the wall.When Bennett arrived home at 1:45 a.m., Sweet was performing mouth-to-mouth resuscitation on Greyson.Bennett called her physician's answering service at 2:18 a.m. and was advised to take Greyson to the hospital.

¶ 3 Because she believed that Greyson was improving, Bennett did not take him to the hospital at that time.At approximately 8:35 a.m., however, Greyson developed a "whizzy cough" and Bennett took him to the hospital.Greyson died shortly after arrival of severe head injuries.

¶ 4 Bennett was charged with child abuse in violation of Arizona Revised Statutes(A.R.S.)section 13-3623.B.1(Supp.1994) for failing to seek medical treatment for Greyson "under circumstances likely to produce death or serious physical injury" and with first degree felony murder in violation of A.R.S. § 13-1105.A.2(Supp.1994), with child abuse as the underlying felony.She was also charged with possession of methamphetamine in violation of A.R.S. § 13-3407(Supp. 1994).

¶ 5The trial court correctly instructed the jury that Bennett could be convicted of felony murder only if her delay in seeking medical treatment for Greyson caused his death.The jury instructions for the felony murder charge stated that Bennett committed first degree murder if,

[a]cting either alone or with another, she intentionally or knowingly committed or attempted to commit Child Abuse Under Circumstances Likely to Cause Death or Serious Physical Injury, and in the course of and in furtherance of that offense, Donna Bennett or John Sweet, or another caused the death of Greyson Bennett.

"Cause . . . the death" means that the crime helped produce the death and that the death would not have happened without the crime.

¶ 6 At the end of trial, Bennett's counsel moved for acquittal pursuant to Rule 20.The trial judge denied the motion, noting that the State had presented sufficient evidence to warrant submitting the matter to the jury.The jury then convicted Bennett of all counts.She received a life sentence with no eligibility for release for thirty-five years for the felony murder conviction, to run concurrently with a seventeen-year sentence for the child abuse conviction, to be followed by a consecutive one-year sentence for the drug possession conviction.

¶ 7 Bennett appealed her convictions, arguing, among other things, that the trial judge had erred in denying the Rule 20 motion with respect to the child abuse count, but she did not challenge the Rule 20 ruling with respect to the murder or drug possession counts.Division Two of the Court of Appeals stayed Bennett's direct appeal pending determination of her post-conviction relief petition.

¶ 8 On October 30, 1997, Bennett's attorney filed a Notice of Post-Conviction Relief with the superior court, stating that he had been appointed as counsel for both the direct appeal and the Rule 32 proceedings.The superior court denied the petition for post-conviction relief, which alleged ineffective assistance of trial counsel, and Bennett petitioned the court of appeals for review.

¶ 9The court of appeals consolidated Bennett's direct appeal and her petition for review of the denial of post-conviction relief, affirming the convictions and denying relief.In its memorandum decision, the court of appeals affirmed the denial of the Rule 20 motion on the child abuse count only; it did not address whether sufficient evidence established that Bennett's delay in seeking medical care caused Greyson's death.

¶ 10 Bennett, with the assistance of new counsel, subsequently filed a second petition for post-conviction relief.In this petition, Bennett alleged that the State failed to present sufficient evidence to show that her delay in seeking medical treatment for Greyson caused his death.In addition, she argued that her appellate counsel was ineffective because he failed to raise this challenge on direct appeal.

¶ 11The superior court dismissed Bennett's second post-conviction relief petition after concluding that Rule 32.2.a precluded the claim of insufficiency of the evidence of causation because that issue had been raised and finally adjudicated on the merits on direct appeal and because Bennett could have raised the issue in her first post-conviction relief proceeding.The superior court also rejected Bennett's ineffective assistance of appellate counsel argument, based in part on its determination that the sufficiency of the evidence claim had been raised and decided in the direct appeal.Although the court found the claim to be precluded, it nonetheless addressed the merits and concluded that medical testimony established causation under the felony murder statute.

¶ 12The case was subsequently transferred from Division Two of the Court of Appeals to Division One, which denied review without comment.Bennett then petitioned this Court for review, challenging only her felony murder conviction and claiming that she had presented a colorable claim that appellate counsel was ineffective in not raising the issue of insufficiency of the evidence to establish causation on direct appeal.This Court has jurisdiction pursuant to Article 6, Section 5.3, of the Arizona ConstitutionandRule 31.19.

II.

¶ 13We must first decide whether Rule 32.2.a(3), which precludes a claim that "has been waived at trial, on appeal, or in any previous collateral proceeding," precludes Bennett's claim of ineffective assistance of appellate counsel.

¶ 14 As a general rule, when "ineffective assistance of counsel claims are raised, or could have been raised, in a Rule 32 post-conviction relief proceeding, subsequent claims of ineffective assistance will be deemed waived and precluded."State v. Spreitz,202 Ariz. 1, 2 ¶ 4, 39 P.3d 525, 526(2002).We have previously noted, however, that it is improper for appellate counsel to argue his own ineffectiveness at trial because the "standard for determining whether counsel was reasonably effective is 'an objective' standard which we feel can best be developed by someone other than the person responsible for the conduct."State v. Marlow,163 Ariz. 65, 68, 786 P.2d 395, 398(1989)(quotingStrickland v. Washington,466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984));see alsoState v. Suarez,137 Ariz. 368, 380, 670 P.2d 1192, 1204(App.1983)(noting that "it is improper for appellate counsel to argue his own ineffectiveness at trial because, as a matter of policy, it is difficult for counsel to objectively review his own performance and zealously argue any inadequacies in that performance on behalf of his client").The same principles apply when post-conviction relief counsel might argue his own ineffectiveness on direct appeal.It is as difficult for post-conviction relief counsel to objectively review his own performance on direct appeal and to argue any inadequacies in that performance on behalf of his client as it is for appellate counsel to argue his own ineffectiveness at trial.

¶ 15 Here, Bennett's first post-conviction relief petition did not raise the issue of ineffective assistance of appellate counsel.Normally, such a claim would now be precluded.SeeRule 32.2.a.In this case, however, post-conviction relief counsel could have raised the claim only by asserting his own ineffectiveness in failing to challenge the sufficiency of the evidence on the causation issue.As our case law makes clear, such an argument is improper.²

¶ 16 For the foregoing reasons, we conclude that the second post-conviction relief petition, in which Bennett was represented by different counsel, was the first proceeding in which she could raise the ineffective assistance of appellate counsel argument.Therefore, Rule 32.2.a(3) does not preclude Bennett's ineffective assistance of counsel claim.

III.

¶ 17 Because Bennett's ineffective assistance of counsel claim is not precluded, we must next decide whether that claim is colorable.If the claim is colorable, Bennett is entitled to a hearing to determine whether appellate counsel rendered effective assistance.Rule 32.8;Spreitz,202 Ariz. at 2 ¶ 5, 39 P.3d at 526.We review for abuse of discretion the superior court's denial of post-conviction relief based on lack of a colorable claim.State v. Krum,183 Ariz. 288, 293, 903 P.2d 596, 601(1995).

A.

¶ 18 Bennett's ineffective assistance of counsel claim relies upon appellate counsel's failure to challenge the sufficiency of the State's evidence of causation on the felony murder charge.The superior court found that appellate counsel was not ineffective because (1) the issue of causation had been...