State v. Gunter
| Decision Date | 18 February 1982 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 643 P.2d 1034,132 Ariz. 64 |
| Parties | STATE of Arizona, Respondent, v. Rexford Howard GUNTER, Petitioner. 5096-PR. |
| Court | Arizona Court of Appeals |
The major issue in this review of a post-conviction proceeding is whether a defendant's single act which subjects him to multiple criminal charges violates the double jeopardy clauses of the United States and Arizona Constitutions as well as the double punishment statute of Arizona.
This action arises from the summary denial by the trial court of defendant Rexford Howard Gunter's petition for post-conviction relief filed pursuant to Rule 32.1, Rules of Criminal Procedure.
The defendant was originally charged with having committed two counts of assault with a caustic chemical in violation of the former A.R.S. § 13-251. On July 11, 1978, he entered a guilty plea to both counts of the indictment as charged and was sentenced to serve maximum consecutive terms of 13 to 14 years on each count. The convictions and sentences were affirmed by this court on appeal by a memorandum decision. 1 He was represented by retained counsel at the time he entered his plea and on appeal.
The facts underlying the original charges are that the defendant had been emotionally distraught for a period of time by the actions of his wife moving out of their home and starting to date Christopher Prekup. On the night of April 18, 1978, the defendant hid in a tree near the premises where his wife was staying and observed his wife and Prekup sitting in a vehicle in front of the residence. As his wife and Prekup left the vehicle and were walking arm in arm up the sidewalk, the defendant leapt from his hiding place and threw a bucket of sulfuric acid which hit both victims. As a result, the defendant's wife was severely injured, and it is contemplated that years of plastic surgery will be required to ameliorate her injuries. Prekup sustained burns on his upper torso, neck and face which have subsequently healed.
On February 26, 1980, the defendant filed a petition for post-conviction relief, claiming numerous grounds for relief. Present counsel was appointed to represent him and filed a supplement to the petition for post-conviction relief. The trial court summarily denied the petition and a timely motion for rehearing was filed which was denied. A timely petition for review to this court was filed.
In the motion for rehearing and defendant's supplement to the motion for rehearing, he has preserved a number of claims for review by this court which may be summarized as follows: (1) that he was denied effective assistance of counsel at the time he entered his plea, (2) that the consecutive sentences imposed on the defendant violate the double punishment statute and the double jeopardy clauses of the United States and Arizona Constitutions, (3) that the plea was not voluntarily and intelligently entered, and (4) that the sentence must be vacated and the case remanded for resentencing because defendant was not shown a copy of the presentence report prior to sentencing.
For his first issue, the defendant argues that he was denied effective assistance of counsel during the plea proceedings. The argument that he did not receive "reasonably competent and effective representation" is based on the assertion that counsel insisted in going on with the guilty plea in spite of petitioner's reluctance to plead guilty and petitioner's denial of the essential elements of the offenses. The record of the plea proceedings clearly belies these contentions.
At the time of the plea proceedings, the defendant denied that he had an intent to disfigure either his wife or Prekup. The court refused to take the plea and recessed the hearing which reconvened several hours later. At that time the defendant was questioned by his counsel as follows:
Q. Rex, I'm going to ask you a few questions about the indictment and comments that were made this morning. I understand that when you said "No," this morning, you misunderstood just exactly what the judge was asking you about, is that true?
A. Yes.
Q. Okay. It's siill (sic) your intent to change your plea from not guilty to guilty in this matter?
A. Yes. Q. All right, Rex, the indictment charges you in count one with throwing corrosive acid with intent to injure or disfigure Christina Gunter on the 18th of April, 1978. Let me ask you, first of all, did you throw an acid on that night at Christina Gunter?
A. Yes, I did.
Q. Did you know it was acid when you threw it?
A. Yes.
Q. Did you do it with the intent to injure her?
A. Yes.
Q. And since you knew it was acid, you knew that it was a corrosive agent?
A. Yes.
Q. And so far as count two is concerned, it charges you with the same crime as against Christopher Raymond Prekup, that is, that you did throw corrosive acid with the intent to injure or disfigure; Rex, in relation to that charge you did know it was an acid?
A. Yes.
Q. And you did throw it?
A. Yes.
Q. And you threw it intending to hit Christina, is that correct?
A. Yes.
Q. And you knew that Mr. Prekup was there, did you not?
A. Yes.
Q. And you threw it in total disregard for his safety or welfare, didn't you?
A. Yes.
Q. You had no concern as to whether it hit him or not, is that true?
A. That's true.
Later in the proceedings, appellant stated clearly that he couldn't stand the pain his wife was causing him and he wanted to injure her and cause her pain, and that that was why he threw the acid. Finally, at the close of the proceedings the court questioned appellant as follows:
Q. All right. Has anything occurred in either of these sessions today, now, Mr. Gunter, at this point, to cause you to change your mind or do you still wish to plead guilty to both counts of the indictment?
A. No, I-I wish to plead guilty, sir.
Q. You feel that you understand the plea agreement and that you have discussed it with your attorneys as much as you need to discuss it?
A. Yes, sir.
Q. Okay. And any questions that you've got about it, you have asked them and satisfied yourself, is that correct?
A. Yes, sir.
The foregoing exchanges clearly belie the defendant's contentions as to Count One, both that he was coerced by counsel into entering his plea and that he denied the essential elements of the offense. As to Count Two, the injury to Prekup, the defendant pled guilty under the doctrine of transferred intent. Under that doctrine, the law transfers the defendant's felonious intent towards his wife to Prekup and the criminality of his act toward Prekup is the same as that directed toward his wife. The quoted exchange is sufficient to establish that intent. See People v. Carlson, 37 Cal.App.3d 349, 112 Cal.Rptr. 321 (1974). It is thus clear that the choice to enter the plea was the defendant's rather than counsel's, and that he admitted the essential elements of the offenses.
The defendant also contends that he was afforded ineffective assistance of counsel because he received no benefit by entering a plea of guilty to the crimes as charged rather than going to trial. As to that issue in the post-conviction proceedings, the trial court found that defense counsel's decision not to go to trial We agree. Given the nature and extent of the injuries to the defendant's wife, a trial in this case would surely have been most arduous for all parties. Although the defendant ultimately received the maximum sentences on the offenses as charged, it is clear that his determination to enter a plea was well advised by counsel. It is well settled in Arizona that relief will be granted on the basis of ineffective assistance of counsel "only if counsel was so inept that the proceedings were reduced to a mere farce, a sham or mockery of justice." State v. Dippre, 121 Ariz. 596, 598, 592 P.2d 1252, 1254 (1979). Tactical decisions on the part of counsel do not, per se, constitute inadequate representation, "nor can effective representation be equated with successful representation." Id. We agree with the trial court's determination that the record reveals that counsel acted in a diligent and competent manner in this case.
For his second issue, the defendant contends that the consecutive sentences imposed on him constitute double punishment in violation of the former A.R.S. § 13-1641 and in violation of the double jeopardy clause of the Fifth Amendment to the Constitution. He argues that he is being punished twice for a single act of throwing the acid resulting from a single intent to injure his wife.
Preliminarily, the state argues that we need not address this issue because it was resolved by this court in the appeal on this matter, and hence, the defendant is precluded from raising it pursuant to Rule 32.2(a)(2), Rules of Criminal Procedure, 17 A.R.S. In our opinion, the previous appeal in this matter did not preclude the issues sought to be raised here.
We will address first the double jeopardy claim and then the double punishment claim. The issue of whether a single act which affects multiple victims can constitutionally result in multiple criminal offenses, each punished separately, was touched on in State v. Miranda, 3 Ariz.App. 550, 416 P.2d 444 (1966). In Miranda, the court briefly noted:
Pertinent authority establishes that it is the intent of the legislature which controls and that there is no constitutional prohibition against le...
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