State v. Espinosa

• Decision Date: 31 July 2001
• Docket Number: No. 2 CA-CR 99-0444-PR., No. 2 CA-CR 98-0131
• Citation: 29 P.3d 278,200 Ariz. 503
• Parties: The STATE of Arizona, Petitioner, v. Anthony Pro ESPINOSA, Respondent.
• Court: Arizona Court of Appeals

29 P.3d 278

200 Ariz. 503

The STATE of Arizona, Petitioner, v. Anthony Pro ESPINOSA, Respondent.

Nos. -0131, -0444-PR.

Court of Appeals of Arizona, Division 2, Department B.

July 31, 2001.

Barbara LaWall, Pima County Attorney, By Kerry L. Muehlenbeck, Tucson, for Petitioner.

Susan A. Kettlewell, Pima County Public Defender, By Brian X. Metcalf, Tucson, for Respondent.

OPINION

DRUKE, J.

¶ 1 Anthony Espinosa was indicted on three counts of sexual assault, two counts of kidnapping, one count of attempted sexual assault, and one count of aggravated assault. The prosecutor offered and Espinosa accepted a favorable plea agreement, but the prosecutor later withdrew the offer based on the victim's and her family's objection to a nontrial disposition. The case proceeded to trial before a jury, which found Espinosa guilty of one count each of sexual assault, kidnapping, and misdemeanor assault. The trial court sentenced Espinosa to concurrent prison terms of fourteen years and ten years on the first two counts and to a concurrent, six-month jail term on the misdemeanor count.

¶ 2 Espinosa filed a notice of appeal and, shortly thereafter, petitioned the trial court for post-conviction relief pursuant to Rule 32, Ariz. R.Crim. P., 17 A.R.S.¹ In his Rule 32 petition, Espinosa challenged the prosecutor's withdrawal of the plea offer, claiming the withdrawal had violated his due process rights because it was based "solely" on the victim's objection to the offer. The offer had provided that Espinosa would plead no contest to attempted aggravated assault involving serious physical injury and face a sentencing range of one to 3.75 years in prison. Espinosa argued in his Rule 32 petition that, although victims have a right to be heard by and confer with a prosecutor about plea offers, Ariz. Const. art. II, § 2.1(A)(4), (6), and A.R.S. § 13-4423(A), a prosecutor has a duty to "seek justice" and represent all people, not just the victim. He thus asserted that the prosecutor's sole reliance on the victim's wishes breached that duty and violated his due process rights. Espinosa also claimed that, by withdrawing the plea offer, the prosecutor had violated the Arizona Distribution of Powers Clause, Ariz. Const. art. III, arguing that the "power and authority [to rescind a plea offer] can not be delegated to the victim."

¶ 3 In an evidentiary hearing, the trial court heard testimony from Espinosa, the victim, the victim's father, the prosecutor, Espinosa's former attorney, and his trial attorney. The prosecutor testified that he had decided to withdraw the plea offer after he had conducted a mock cross-examination of the victim and found her credible. In contrast, Espinosa's former attorney testified that the prosecutor had told him the victim's "father was adamant that the case could not plead and that because of the position [the father] had taken," the prosecutor "was not going to be allowed to [offer] a plea." Similarly, Espinosa's trial counsel testified that the prosecutor had stopped him "in the hallway and said he had to withdraw the plea" because "the victim's parents had called [the Pima County Attorney] and had complained that there was going to be a plea agreement [and] ... the victim's family did not want any kind of plea agreement. And that as a result... he was going to have to withdraw the plea agreement."

¶ 4 In its subsequent ruling, the trial court found that the County Attorney had told the prosecutor "that the plea should be withdrawn and the matter should go to trial." The court also found that the County Attorney's decision "was based solely on the victim's and her family's objection to a non-trial disposition." Relying on State v. Wood, 180 Ariz. 53, 881 P.2d 1158 (1994), and State v. Lavers, 168 Ariz. 376, 814 P.2d 333 (1991), the trial court ruled that the offer had been withdrawn "for improper reasons" and that the withdrawal had "violated both [Espinosa's] due process rights and the Separation of Powers Clause of the Arizona Constitution." Accordingly, the court granted post-conviction relief and ordered the prosecutor to give Espinosa an opportunity to accept the plea offer. The state's petition for review followed.

¶ 5 We review a trial court's decision in a post-conviction proceeding for an abuse of discretion. State v. Amaya-Ruiz, 166 Ariz. 152, 800 P.2d 1260 (1990). That discretion was abused here because we find that Espinosa's Rule 32 claim was precluded. And, even though the state did not assert preclusion in the trial court or on review, we may do so sua sponte. A.R.S. § 13-4232(C) ("Though the state has the burden to plead and prove grounds of preclusion, any court on review of the record may determine and hold that an issue is precluded regardless of the state's failure to raise the preclusion issue."); Ariz. R.Crim. P. 32.2(c) (same).

¶ 6 Rule 32.1(a), Ariz. R. Crim. P., allows a defendant to seek post-conviction relief on the ground that "[t]he conviction or the sentence was in violation of the Constitution of the United States or of the State of Arizona." But Rule 32.2(a)(3), Ariz. R.Crim. P., precludes post-conviction relief if the petition is based on any ground that "has been waived at trial, on appeal, or in any previous collateral proceeding." And Rule 32.2(b) makes clear that preclusion applies to a claim, such as Espinosa's, that the conviction violated either the United States or the Arizona Constitution.

¶ 7 Even so, preclusion does not apply to claims involving certain constitutional rights unless the record shows that the defendant knowingly, voluntarily, and intelligently waived the right. "If an asserted claim is of sufficient constitutional magnitude, the state must show that the defendant `knowingly, voluntarily and intelligently' waived the claim." Cmt., Ariz. R.Crim. P. 32.2(a)(3). Thus, preclusion would not apply to claims involving such constitutional rights as the right to counsel, see State v. Harding, 137 Ariz. 278, 670 P.2d 383 (1983); the right to a jury trial, see State v. Masengill, 110 Ariz. 310, 518 P.2d 560 (1974); or the right to be tried by a twelve-person jury, see State v. Smith, 197 Ariz. 333, 4 P.3d 388 (App.1999), unless the record establishes that the defendant has knowingly, voluntarily, and intelligently waived the right. And, conversely, if the claim implicates a less significant constitutional right, preclusion applies even without a showing that the defendant knowingly, voluntarily, and intelligently waived the right. In other words, "the state may simply show that the defendant did not raise the error at trial ... and that would be sufficient to show that the defendant has waived the claim." Cmt., Ariz. R.Crim. P. 32.2(a)(3).

¶ 8 In this case, Espinosa claimed, and the trial court found, that the prosecutor had improperly withdrawn the plea offer² and, thus, violated his due process rights and Arizona's Distribution of Powers Clause. In our opinion, however, Espinosa's claim does not implicate constitutional rights of sufficient magnitude that they require a knowing, voluntary, and...