State v. Goldin, 2 CA–CR 2015–0208–PR.

• Decision Date: 22 December 2015
• Docket Number: No. 2 CA–CR 2015–0208–PR.,2 CA–CR 2015–0208–PR.
• Citation: 365 P.3d 364
• Parties: The STATE of Arizona, Respondent, v. Darren Irving GOLDIN, Petitioner.
• Court: Arizona Court of Appeals

365 P.3d 364

The STATE of Arizona, Respondent,

v.Darren Irving GOLDIN, Petitioner.

No. 2 CA–CR 2015–0208–PR.

Court of Appeals of Arizona, Division 2.

Dec. 22, 2015.

Mark Brnovich, Arizona Attorney General, Kimberly H. Ortiz, Section Chief Counsel, Tucson By Nicholas Klingerman, Assistant Attorney General, Tucson, Counsel for Respondent.

Law Office of Paul S. Banales By Paul S. Banales, Tucson, Counsel for Petitioner.

Presiding Judge HOWARD authored the opinion of the Court, in which Judge VÁSQUEZ and Judge BRAMMER¹ concurred.

OPINION

HOWARD, Presiding Judge:

¶ 1 In this petition for review, Darren Goldin challenges the trial court's order denying his petition for post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P., after an evidentiary hearing, and finding his claim of ineffective assistance of counsel (IAC) precluded. Based on our supreme court's decision in State v. Diaz, 236 Ariz. 361, 340 P.3d 1069 (2014), and the unique circumstances of this case, we grant relief in part, remanding this matter to the trial court to determine whether Goldin is entitled to relief pursuant to Rule 32.1(f) and, if so, to allow Goldin to present his IAC claim in a timely post-conviction proceeding.

Procedural History

¶ 2 Goldin was charged by indictment with first-degree murder, committed in March 2000. Pursuant to a plea agreement, he pled guilty to second-degree murder. The plea agreement stipulated Goldin would be sentenced to a prison term of eleven years, to be served consecutively to another prison term he began serving in Maricopa County Superior Court No. CR–00–092448B in September 2005. During the change-of-plea hearing, when the trial court explained to Goldin the sentence was consecutive, trial counsel Thomas Hippert interjected that the sentence "goes back to the time of his arraignment," and "it does run from I think May of 2010."² The court did not pursue the issue further.

¶ 3 At the sentencing hearing on January 31, 2013, the parties submitted an addendum to the plea agreement, which stated: "Pursuant to A.R.S. § 13–712(b) and ARCP Rule 26.10(4), the parties stipulate that the Court shall order that Defendant's pretrial incarceration dating from his Arraignment on June 15, 2010 be credited against his sentence of imprisonment...." The trial court sentenced Goldin to the eleven-year prison term, and granted him 988 days of presentence incarceration credit. In imposing that term, the court confirmed the sentence was consecutive to the sentence in the Maricopa County case, but added, "which, as the parties have indicated on the record today, by stipulation, that date is to start to commence from June 15, 2010. At this point, I understand that the presentence report author has calculated 988 days."

¶ 4 A year later, on February 10, 2014, Goldin filed a pro se notice of post-conviction relief. On the form notice, he checked the space to reflect he was not asserting a claim of ineffective assistance of counsel. He also requested that Hippert and Raymond Panzarella, the second attorney who had represented him, be appointed in the post-conviction proceeding. In the paragraph pertaining to an untimely notice, however, the form required Goldin to specify whether he intended to raise a claim pursuant to Rule 32.1(d), (e), (f), (g) or (h) ; Goldin did not check the space indicating "yes" or "no." The trial court dismissed the notice as untimely, noting Goldin had "failed to indicate in his Notice that an exception to a timely Notice applied. Ariz. R. Crim. P. 32.2(b)." See Ariz. R. Crim. P. 32.4(a) (notice of post-conviction relief must be filed within ninety days of sentencing).

¶ 5 On February 27, Goldin filed a form petition for post-conviction relief, in propria persona, in which he stated he wished to assert a claim pursuant to Rule 32.1(c). He also filed a motion to clarify his sentence. The state filed its response to the petition and motion on March 13. On March 19, the trial court entered an order stating it lacked "jurisdiction to address the Petition" and the accompanying memorandum because the untimely notice with which it was associated had been dismissed and no new notice of post-conviction relief had been filed. Goldin did not seek review of that ruling.

¶ 6 On April 16, 2014, Goldin filed a second pro se notice of post-conviction relief. In that notice he stated he was asserting a claim of IAC and requested the appointment of counsel. He also indicated that he was raising claims of newly discovered material facts and that failure to file a timely notice of post-conviction relief was without fault on his part. Goldin asserted in the notice that Hippert and Panzarella had told him his sentence would commence in 2010 but he had learned it commences in 2016.

¶ 7 The trial court appointed Paul Banales to represent Goldin. In a petition Banales filed in October 2014, Goldin asserted that, based on erroneous assurances from Hippert and Panzarella, he had believed his sentence "would start to run as of May of 2010." Goldin relied, in part, on Hippert's statements during the change-of-plea hearing and correspondence with Hippert, who confirmed he had understood the sentence would "start" in May or June of 2010. Goldin argued he recently had learned of a discrepancy between his understanding of when his sentence commenced and what the Arizona Department of Corrections (DOC) had told him, which was, according to Goldin, that the sentence "would not start to run until September of 2013."

¶ 8 The state argued in its response to the petition that the IAC claim was precluded because Goldin had not raised it in the first post-conviction proceeding and, alternatively, the claim was untimely. See Ariz. R. Crim. P. 32.2(a)(3), 32.4(a). The state also argued that no claim had been or could be raised pursuant to Rule 32.1(e) or (f), refuting the merits of such claims had they been raised; the state argued, too, that Goldin had asserted no meritorious reason for failing to raise such claims in the initial proceeding or in a timely manner. See Ariz. R. Crim. P. 32.2(b) (requiring defendant attempting to raise claim under Rule 32.1(d), (e), (f), (g) and (h) in successive or untimely proceeding to establish meritorious reasons why not raised in timely or previous proceeding).

¶ 9 In his reply, Goldin again asserted he had misunderstood his sentence because of the ineffectiveness of his attorneys, and explained he had failed to raise the IAC claim in a timely or previous proceeding because he only recently had learned he had such a claim. He then argued he was entitled to relief based on newly discovered evidence pursuant to Rule 32.1(e) both as an independent claim and interrelated with the IAC claim.³ Goldin concluded in his reply, "Whether Defendant's claim is based on IAC, or newly-discovered evidence, there are those exceptional cases which deserve post-conviction consideration, even if the defendant failed to raise IAC in his first Rule 32 Notice."

¶ 10 Over the state's objection, the trial court set the matter for an evidentiary hearing. A DOC employee in the Time Computation Unit testified at that hearing that Goldin's Maricopa County sentence would be completed in June 2016, and the consecutive sentence in this case then would commence. He explained that to apply 988 days' credit to the eleven-year sentence, the sentence-commencement date essentially is back-dated so that it would, for time-calculation purposes, begin January 31, 2013, and would be completed on September 17, 2024.

¶ 11 Hippert and Panzarella testified that although the plea agreement provided and the trial court had imposed a consecutive prison term, they had believed Goldin essentially would begin serving his sentence from the time of his arraignment in 2010 because of the nearly three years' presentence incarceration credit. Both attorneys believed this was the import and intent of the addendum to the plea agreement. And, they testified, this is what they had told Goldin.⁴

¶ 12 Goldin testified consistently with Hippert and Panzarella about what they had told him. He conceded he had stipulated to a consecutive prison term and neither the plea agreement nor the addendum stated he would begin serving his sentence in May or June of 2010, although he believed the sentence, in effect, would be partially concurrent because of the presentence incarceration credit. He testified further that, had he known he would not begin serving the eleven-year term until June 2016, and would have to serve eight more years, not five, after receiving the three years' credit, he would not have accepted the plea agreement.

¶ 13 Goldin also testified he did not recognize an issue with his sentence until he sought transfer to minimum security, which required a calculation of the amount of time remaining on both prison terms. When he wrote to Hippert telling him what DOC had told him, Hippert said he should "write a Rule 32" about DOC's miscalculation of his sentence.⁵ Goldin explained that this advice caused him to file the first notice of post-conviction relief, followed by a petition and motion for clarification of the sentence. He testified that it was not until the state filed its response that he realized DOC had not miscalculated the sentence, but that his attorneys had given him incorrect information. At that time, he filed the second notice and petition raising the IAC claim. After taking the matter under advisement, the trial court denied Goldin's petition. This petition for review followed.

Discussion

¶ 14 In his petition for review, Goldin argues the trial court erred by finding precluded his IAC claim based on newly discovered evidence. But IAC claims fall under Rule 32.1(a). See, e.g., State v. Petty, 225 Ariz. 369, ¶ 11, 238 P.3d 637, 641 (App.2010) ; Ariz. R. Crim. P. 32.1(a) cmt. (acknowledging ineffective-assistance-of-counsel claims fall under this subsection). As a claim that falls under Rule 32.1(a), Goldin's IAC claim had to be raised in a timely notice, that is,...