State v. Matias
| Decision Date | 20 August 2021 |
| Docket Number | 2 CA-CR 2021-0016-PR |
| Parties | The State of Arizona, Respondent, v. Dora Celena Matias, Petitioner. |
| Court | Arizona Court of Appeals |
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Cochise County No. S0200CR201700137 The Honorable James L. Conlogue, Judge
REVIEW GRANTED; RELIEF GRANTED COUNSEL
Brian M. McIntyre, Cochise County Attorney By Daniel H. Akers Deputy County Attorney, Bisbee Counsel for Respondent
Law Office of Paul S. Banales, Tucson By Paul S. Banales Counsel for Petitioner
Presiding Judge Eppich authored the decision of the Court, in which Vice Chief Judge Staring concurred.
¶1 Dora Matias seeks review of the trial court's ruling dismissing her petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. The overarching issue in her petition for review is whether the trial court erred by rejecting her claim that she received ineffective assistance of counsel based on a conflict of interest arising from her counsel's joint representation of her and her co-defendant, David Duffy- an issue she attempted to raise on appeal, but this court declined to address. State v. Matias, No. 2 CA-CR 2018-0073, ¶ 7 (Ariz. App. Mar. 25, 2019) (mem. decision). We suspended Matias's petition for review pending the Arizona Supreme Court's decision in Duffy's appeal. The supreme court granted Duffy a new trial based on the trial court's failure to conduct an inquiry to confirm he had knowingly and intelligently waived the right to conflict-free counsel. State v. Duffy, 251 Ariz. 140, ¶¶ 24-26 (2021).
¶2 This court ordered the state to respond to Matias's petition for review to address any implications of Duffy. In its response, the state conceded the trial court's ruling "should be reversed and this matter should be remanded for a new trial." In light of Duffy, we agree the ruling is erroneous insofar as the court determined that Matias had "waived any potential conflict of interest." In addition, the state agreed in Duffy that there was a conflict. See Duffy, 251 Ariz. 140, ¶ 25. We therefore accept the state's concession. Cf. In re Navajo Cnty. Juv. Action No. J-3206, 121 Ariz. 407, 408 (App. 1979) ().
¶3 We grant review and relief. Matias's convictions and sentences are reversed, and the case is remanded to the trial court for further proceedings.
¶4 I respectfully dissent because my colleagues do not properly evaluate Matias's conflicted-counsel claim and ignore the factual findings of the trial court. The majority simply relies on State v. Duffy, Matias's co-defendant's case, and the state's confession of error. But this case is not Duffy, and, regardless of the opinions of the state and the defendant, we should not find error if no error occurred. The court did not err and, unlike her co-defendant David Duffy, Matias is not entitled to a new trial.
¶5 This case, unlike Duffy's, is not on direct appeal. We resolved Matias's direct appeal some months before we addressed Duffy's. Matias, No. 2 CA-CR 2018-0073, ¶¶ 5-10. In her appeal, Matias had raised the same arguments that Duffy would later raise. Specifically, she asserted "the trial court violated her constitutional right to counsel by allowing her attorney to represent both her and her co-defendant." Id. ¶ 1. She further argued that the error was the trial court's "because it 'never verified that the waiver of the conflict was knowing, intelligent, and voluntary.'" Id. ¶ 8. We affirmed her convictions, concluding that her claim needed to be raised in post-conviction relief proceedings. Id. ¶¶ 7, 16. Specifically, we stated that "any issue about why counsel did not pursue alternative defenses and whether she and Duffy signed a waiver of conflict are evidentiary issues that 'can only be developed at an evidentiary hearing in a post-conviction relief proceeding.'" Id. ¶ 7 (quoting State v. Tucker, 205 Ariz. 157 ¶ 26 (2003)). Matias did not seek supreme court review of that decision.
¶6 Because Matias did not seek supreme court review, our decision affirming her conviction was final and conclusive. See State v. Febles, 210 Ariz. 589, ¶ 9 (App. 2005) . That is, it was final and conclusive that the trial court was not required to engage in the colloquy she demanded and there was no impermissible conflict of interest justifying the vacating of her convictions. Because she did not seek supreme court review, Matias's only remaining remedy was to seek Rule 32 relief for all matters appropriately raised in a Rule 32 proceeding; namely, those claims that had not been and could not have been raised and resolved on appeal. Ariz. R. Crim. P. 32.1, 32.2(a).
¶7 In light of Duffy, we know that our decision on Matias's direct appeal was legally wrong. Had Matias's appeal followed the issuance of Duffy, rather than preceded it, we would have similarly vacated Matias's conviction and ordered a new trial. The majority seems to conclude that, because we now know we were wrong in denying Matias's appeal, we should correct it by giving her that same result now. But bestowing such a remedy in this proceeding is legally incorrect.
¶8 When Duffy was before both this court and our supreme court, it was on direct appeal. Both the majority of our court and the unanimous supreme court determined that the trial judge had erred by failing to engage in a colloquy with Duffy as to his counsel's conflict and any waiver of that conflict. Duffy, 251 Ariz. 140, ¶¶ 23-25; State v. Duffy, 247 Ariz. 537, ¶ 27 (App. 2019). Both courts recognized that joint representation is not a conflict per se or impermissible. Duffy, 251 Ariz. 140, ¶ 14; Duffy, 247 Ariz. 537, ¶ 29. Nonetheless, each concluded that, when a potential conflict is either apparent to the court or brought to its attention, a trial court must engage in a colloquy with the defendant to determine whether he has knowingly, intelligently, and voluntarily waived any potential conflict. Duffy, 251 Ariz. 140, ¶ 19; Duffy, 247 Ariz. 537, ¶ 16.
¶9 Our supreme court recognized, of course, that "a defendant may waive the Sixth Amendment right to conflict-free counsel," Duffy, 251 Ariz. 140, ¶ 15, so long as "he knows what he is doing and his choice is made with eyes open," id. (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)). But, "[b]ased on [the] record" before it, our supreme court could not "conclude that Duffy knowingly and intelligently waived the right to conflict-free counsel." Id. ¶ 24. Under the circumstances, the failure of the trial court to engage in the colloquy with Duffy and glean from him his knowing, intelligent, and voluntary waiver, "so thoroughly tainted the trial court proceedings" that it was constrained to "set aside the verdict and remand for a new trial." Id. ¶ 25. Notwithstanding the court's conclusion, it intimated that had the record otherwise reflected Duffy's knowing, intelligent, and voluntary waiver, it would not have found the failure to engage in a colloquy to be reversible error. Id. ¶ 24.
¶10 Given its procedural posture, Duffy's record on the relevant questions of conflict and waiver-beyond what was avowed to the trial court by counsel-was undeveloped. The evidentiary record here, however, is not undeveloped but rather complete. In all relevant respects, it is a very different case from Duffy and we should not disregard that distinction. Because this is not on direct appeal, but rather arises from a Rule 32 proceeding-during which an evidentiary hearing on the fact of conflict and existence and extent of any waiver was held-we must evaluate her claim under Rule 32 in light of that record.
This is not a doover of her appeal. Matias is not Entitled to Rule 32 Relief
¶11 As Matias asserts in her petition for review, she had argued in her Rule 32 petition that she was denied effective assistance of counsel due to a conflict of interest arising from joint representation of her and Duffy, by defense counsel Ivan Abrams and Nicholas Brereton. Matias also claims that she did not "knowingly, intelligently and voluntarily" waive the potential conflict. After additional briefing following the issuance of Duffy, the state now agrees there was a conflict of interest and acquiesces to the relief requested.
¶12 Whether Matias was denied effective assistance of counsel is a mixed question of fact and law. State v. Pandeli, 242 Ariz. 175, ¶ 4 (2017). In such cases, we defer to the trial court's findings of fact unless they are clearly erroneous. Id. ¶ 3. We ultimately review the court's ruling on a petition for post-conviction relief for an abuse of discretion. Id. ¶ 4.
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