State v. Stewart

• Decision Date: 25 April 2023
• Docket Number: 1 CA-CR 22-0454 PRPC
• Parties: STATE OF ARIZONA, Respondent, v. LANI JEWELS STEWART, Petitioner.
• Court: Arizona Court of Appeals

1

STATE OF ARIZONA, Respondent, v. LANI JEWELS STEWART, Petitioner.

No. 1 CA-CR 22-0454 PRPC

Court of Appeals of Arizona, First Division

April 25, 2023

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Mohave County No. CR-2020-00017 The Honorable Billy K. Sipe, Judge Pro Tempore

Mohave County Attorney's Office, Kingman By Jacob Cote Counsel for Respondent

Grand Canyon Law Group, LLC, Mesa By Angela Charlene Poliquin Counsel for Petitioner

Presiding Judge Paul J. McMurdie delivered the Court's decision, in which Judge Michael J. Brown joined. Judge Michael S. Catlett filed a decision concurring in part and dissenting in part.

MEMORANDUM DECISION

MCMURDIE, JUDGE

¶1 Jallani Jewels Stewart petitions this court to review the summary dismissal of his petition for post-conviction relief ("PCR") filed under Arizona Rule of Criminal Procedure 33. We grant review and relief in part and remand for the superior court to conduct an evidentiary hearing under Rule 33.13 consistent with this decision.

FACTS^[1] AND PROCEDURAL BACKGROUND

¶2 In January 2020, a grand jury indicted Stewart for transporting marijuana for sale, a Class 2 felony; forgery, a Class 4 felony; and four counts of forgery of a credit card Class 4 felonies.

¶3 In the superior court, an attorney jointly represented Stewart and his codefendant. Stewart signed a conflict-of-interest waiver acknowledging that his attorney advised him of any potential conflict and consented to the joint representation.

¶4 The State offered Stewart a plea agreement in which he would plead guilty to possessing marijuana for sale and forgery. In return, the State would dismiss the other charges. Stewart's counsel advised Stewart that under the plea agreement, the court could sentence him "to probation jail or 1.5 - 3 years prison on one marijuana charge and one forgery (credit card) charge. The sentences would be concurrent." But counsel's advice was wrong. Under the plea agreement, the court had complete sentencing discretion and could sentence Stewart to 3.75 years per charge without agreement on whether the sentences would run consecutively or concurrently.

¶5 At the change-of-plea hearing, the State laid the following factual basis for the guilty verdicts:

Mr. Stewart and his codefendant were subjects of a traffic stop. The vehicle was eventually searched by officers and the search led to the discovery of ten pounds of marijuana, which is an amount consistent with the intent to distribute, and 24 forged credit cards with Jallani Stewart's name embossed on the cards.

During the change-of-plea colloquy, the court accurately stated the sentencing ranges under the plea agreement, and Stewart said he understood.

THE COURT: If I do not place you on probation, then obviously I will sentence you to prison. If I sentence you to prison, the absolute minimum I can impose would be one year. One year is the minimum for the Class 4 felonies. Therefore, if I sentence you to prison and impose the minimum of one year for each and run those concurrently or at the same time, then one year will be your prison sentence. If I impose the maximum for each of these offenses -- which is 3.75 years -- and run those consecutive or one after another, then 7 % years in prison will be your sentence. Therefore, do you understand if you are sentenced to prison, the range of -of imprisonment will be anywhere between one and 7 % years?

THE DEFENDANT: (No response.)

THE COURT: Do you understand that, Mr. Stewart?

THE DEFENDANT: Yes, sir.

Neither Stewart nor his counsel questioned the plea agreement's sentencing range as stated by the court. Stewart pled guilty to the charges in the agreement.

¶6 After Stewart entered the plea agreement but before sentencing, his counsel again erroneously advised Stewart that his "possible sentence [was] anywhere from 4 year's [sic] probation with or without up to 1 year in the county jail or 1.5-3 years prison." Stewart's counsel submitted a memorandum arguing for supervised probation before sentencing. Counsel did not argue for concurrent sentences at sentencing if the court imposed a prison sentence. The superior court sentenced Stewart to serve 2.5 years consecutively for each offense. Stewart appeared shocked by the sentence and engaged the court:

THE DEFENDANT: So I can't withdraw it?

THE COURT: Well, not right now you can't. If you want to file a motion asking to withdraw your plea agreement, that's a separate issue from today.

THE DEFENDANT: For real, man? This is -- this is the best I can get?

THE COURT: Yes, Mr. Stewart. Again, I've imposed the sentence that I determined was appropriate.

THE DEFENDANT: Can I even request to be transferred back to North Carolina and do prison there?

THE COURT: No. You have to do your prison in Arizona.

THE DEFENDANT: Five years. There's nothing I can do, huh?

THE COURT: Mr. Stewart, what those forms are and you'll receive a copy is your rights of review which I'll explain to you in just a few moments and your right to request the conviction be set aside and your civil rights be restored. And, again, I'll explain that to you in just a few moments.

THE DEFENDANT: All right. I just -- I just need a moment. This is just -- I mean, I wasn't even -- thought I was -- I wasn't told or nothing. I'm lost. So, Your Honor, do I got to do five years in prison?

¶7 Stewart petitioned for PCR. The superior court denied the petition, concluding that Stewart failed to state a colorable claim for relief. Stewart petitioned this court for review, and we have jurisdiction under A.R.S. §§ 13-4031 and -4239 and Arizona Rule of Criminal Procedure 33.16(a)(1).

DISCUSSION

¶8 This court will not disturb a superior court's ruling on a petition for PCR absent an abuse of discretion or error of law. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012); State v. Macias, 249 Ariz. 335, 340, ¶ 16 (App. 2020). We review the court's legal conclusions de novo. State v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017).

¶9 On review, Stewart first argues that his counsel provided ineffective assistance by not interviewing witnesses, moving to suppress, or arguing for concurrent sentences. He next contends that his counsel provided ineffective assistance by not requesting a hearing under State v. Duffy, 251 Ariz. 140 (2021), and that the superior court abused its discretion by not conducting a Duffy hearing sua sponte. Finally, Stewart argues his counsel's incorrect explanation of the plea agreement constituted ineffective assistance resulting in an involuntary plea agreement.

A. Stewart's Counsel Did Not Provide Ineffective Assistance by Failing to Move to Suppress, Interview Witnesses, or Argue for Concurrent Sentences at Sentencing.

¶10 We agree with the superior court's conclusion that Stewart's counsel did not render ineffective assistance by not interviewing witnesses, moving to suppress, or arguing for concurrent sentences. To establish a colorable claim for ineffective assistance of counsel, the defendant must prove that counsel's performance fell below an objective standard of reasonableness as defined by prevailing professional norms, and but for counsel's errors, there is a reasonable probability that the outcome would have been different. State v. Nash, 143 Ariz. 392, 397-98 (1985) (citing Strickland v. Washington, 466 U.S. 668, 688-89 (1984)). We presume counsel's conduct falls within the wide range of reasonable professional assistance that might be considered trial strategy, and it is a defendant's burden "to show counsel's decisions were not tactical in nature." State v. Denz, 232 Ariz. 441, 444, ¶ 7 (App. 2013).

¶11 If a defendant claims counsel was ineffective by failing to investigate evidence or file pretrial motions, the defendant must establish that counsel's advice to plead guilty without having first pursued those actions "rendered that advice outside the 'range of competence demanded of attorneys in criminal cases.'" Tollett v. Henderson, 411 U.S. 258, 268 (1973) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). And, "[t]o establish prejudice in the context of a plea agreement, a defendant must show a reasonable probability that except for his lawyer's error he would not have waived his right to trial and entered a plea." State v. Ysea, 191 Ariz. 372, 377, ¶ 17 (1998), superseded on other grounds by statute, A.R.S. § 13-703. ¶12 Stewart first argues that his counsel should have interviewed witnesses before Stewart entered the plea agreement. But Stewart's trial counsel provided him with an analysis letter discussing the case and options before Stewart entered the plea agreement. Stewart fails to offer what other evidence his counsel could have discovered in interviews that would have changed the advice and, thereby, the outcome.

¶13 Stewart next argues that his counsel should have moved to suppress evidence arising out of the traffic stop, detention, and search ending in Stewart's arrest. To establish Strickland's prejudice prong, Stewart must show a reasonable probability that a suppression motion would have succeeded. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); State v. Kasten, 170 Ariz. 224, 228-29 (App. 1991). Stewart does not try to establish a suppression motion would have been meritorious, instead only stating there would not have been a downside to filing it. The claim fails.

¶14 Finally, Stewart argues his counsel should have advocated for concurrent sentences. Stewart's counsel submitted a pre-sentencing memorandum and argued at sentencing for supervised probation. Under the plea, the court had the discretion to impose concurrent or consecutive sentences. No objective evidence supports a claim that the trial court would have imposed concurrent...