State v. Ysea

• Decision Date: 02 April 1998
• Docket Number: No. CR-97-0065-PR,CR-97-0065-PR
• Citation: 956 P.2d 499,191 Ariz. 372
• Parties: , 266 Ariz. Adv. Rep. 3 STATE of Arizona, Respondent. v. Esgard YSEA, Petitioner.
• Court: Arizona Supreme Court

Page 499

956 P.2d 499

191 Ariz. 372, 266 Ariz. Adv. Rep. 3

STATE of Arizona, Respondent. v. Esgard YSEA, Petitioner.

No. CR-97-0065-PR.

Supreme Court of Arizona En Banc.

April 2, 1998.

Grant Woods, Arizona Attorney General Phoenix by Paul J. McMurdie, R. Wayne Ford, Phoenix, and Alan K. Polley, Cochise County Attorney by Vincent J. Festa, Bisbee, for State of Arizona.

Stanton Bloom, Tucson, for Esgard Ysea.

OPINION

FELDMAN, Justice.

¶1 In 1986, Esgard Ysea pleaded guilty to manslaughter and was sentenced to life imprisonment without possibility of parole for twenty-five years. Ten years later, Ysea brought a motion to vacate the plea on the grounds that his previous lawyer provided ineffective assistance, thus rendering his guilty plea involuntary. The trial judge denied the motion without a hearing, and the court of appeals affirmed. We granted review pursuant to Ariz. R.Crim. P. 32.9(9). We have jurisdiction under Ariz. Const. art 6, § 5(3).

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In September 1985, Ysea was charged with the first-degree murder of his estranged wife. At that time, Ysea was on probation for solicitation to commit aggravated assault. The state offered to let Ysea plead guilty to manslaughter, a class 3 felony, with a sentence of twenty-five years to life and without parole eligibility for the first twenty-five years. The prosecutor's written plea offer included a letter explaining that the manslaughter plea "would involve the imposition of the mandatory life sentence, but would avoid the possibility of the death penalty." The state also offered to dismiss a petition to revoke Ysea's probation on the solicitation conviction, which carried a presumptive two-year sentence. Ysea's lawyer advised him that if he should be convicted of first-degree murder, his solicitation conviction would be considered a prior violent felony under A.R.S. § 13-703, thus making him eligible for the death penalty. To avoid a death sentence, Ysea entered into the plea agreement on June 2, 1986.

¶3 In his 1996 petition for post-conviction relief, Ysea claimed that his attorney provided ineffective assistance when he mistakenly evaluated the prior solicitation as a statutory aggravator under A.R.S. § 13-703(F)(2). In an affidavit accompanying the motion, Ysea's former counsel stated that he and the prosecutor agreed that pleading guilty to manslaughter would allow Ysea to avoid a possible death sentence. Counsel advised Ysea to accept the plea because he believed it was the only way Ysea could avoid the death penalty. In his own affidavit, Ysea asserted that he wanted to reject the offer and go to trial as he felt he had nothing to lose. However, relying on counsel's advice, he accepted the manslaughter plea. The trial judge denied relief. The court of appeals affirmed, holding that under the status of the law in 1986, Ysea's counsel could have reasonably believed that the prior solicitation conviction would serve as an (F)(2) aggravating factor, thereby making Ysea eligible for the death penalty. State v. Ysea, No. 2 CA-CR 96-0109-PR (Jan. 9, 1997, memorandum decision), at 6.

¶4 We granted review to consider two questions:

1. Was it reasonable in 1986 for counsel to believe that a prior solicitation conviction could serve as an aggravating factor invoking the possibility of a death sentence on a first degree murder conviction?

2. Does a plea agreement made by a defendant based solely on such erroneous legal advice represent ineffective assistance of counsel rendering the plea involuntary and compelling its withdrawal?

DISCUSSION

A. The status of the law regarding the (F)(2) aggravating factor in 1986

¶5 The sentencing statute provides that when a defendant is convicted of first- degree murder, the trial judge must weigh aggravating and mitigating factors to determine whether the applicable sentence is death or life imprisonment without the possibility of parole for twenty-five years. See A.R.S. § 13-703. If the judge finds one or more of the aggravating factors listed in § 13-703(F), the defendant is death eligible, and if the aggravating factors are not outweighed by mitigating factors listed in § 13-703(G), the resulting sentence is death. The only aggravating factor arguably applicable to Ysea was that he "was previously convicted of a felony in the United States involving the use or threat of violence on another person." § 13-703(F)(2).

¶6 The court of appeals held that in 1986 the law was not entirely clear whether Ysea's prior solicitation conviction could have qualified as an (F)(2) aggravating factor. Mem. dec. at 3-5. We disagree. As early as 1983, this court clearly announced the principle governing determination of whether a prior conviction would serve as such an aggravating factor. See State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983). Both Ysea's counsel and the state agree, in fact, that Gillies reflected the status of the law in 1986.

¶7 In Gillies we examined a trial judge's finding of an (F)(2) aggravating factor on a first-degree murder conviction. Gillies had a prior theft conviction. The victim had testified that Gillies used violence and threats to accomplish the theft. The trial judge therefore found the theft conviction to be an aggravating circumstance. On review, we reversed, holding that to determine the applicability of the (F)(2) aggravator, a trial judge must look only at the statutory definition of the crime of which the defendant was convicted, not the specific facts that led to the conviction. We emphasized that to qualify as an aggravator, the statutory definition must include violence or the threat of violence. 135 Ariz. at 511, 662 P.2d at 1018.

¶8 The court of appeals believed that this court did not crystallize case law on this point until 1989 in State v. Romanosky, 162 Ariz. 217, 782 P.2d 693 (1989). Mem. dec. at 4. However, in Romanosky, we quoted the holding in Gillies that " 'to constitute an aggravating circumstance under A.R.S. 13-703(F)(2), the prior conviction must be for a felony which by its statutory definition involves violence or the threat of violence on another person.' " Id. at 227-28, 782 P.2d at 703-04 (quoting Gillies, 135 Ariz. at 511, 662 P.2d at 1018) (emphasis added in Romanosky ). Romanosky emphasized the clear language of Gillies and cited numerous cases standing for the proposition that the court takes "judicial notice that some crimes are by definition, violent felonies." Id. at 227, 782 P.2d at 703 (emphasis in original). Romanosky created no new doctrine but merely reiterated the rule previously announced in Gillies.

¶9 Thus, as the law stood in 1986, Ysea's counsel should have examined only the statutory definition of solicitation to determine whether Ysea's previous conviction could support an (F)(2) finding. That statutory definition provided:

A person commits solicitation if, with the intent to promote or facilitate the commission of a felony or misdemeanor, such person commands, encourages, requests or solicits another person to engage in specific conduct which would constitute the felony or misdemeanor or which would establish the other's complicity in its commission.

A.R.S. § 13-1002. This definition does not require an act or even a threat of violence as an element for solicitation. Thus, under Gillies Ysea's prior conviction could not support an (F)(2) finding.

¶10 The state and the dissent claim, however, that a reasonable lawyer in 1986 might conclude that the intentional offense of solicitation could be connected with the underlying offense of aggravated assault so that solicitation would be considered a crime of violence. See Dissent at p 25. There are several problems with this argument. We begin with the facts of the case: Ysea's lawyer did not look at the solicitation offense, did not connect it with the underlying offense, and did not attempt to rationalize the solicitation offense with the Gillies rule. This lawyer, in fact, did not do any research, was not aware of Gillies, and simply accepted at face value the prosecutor's unsupported assertion that this was a death penalty case. Surely, in a capital case one might expect reasonably competent defense counsel to research the question of whether the seemingly non-violent act of solicitation qualified as a capital aggravating factor under a statute that required previous conviction of a crime involving the use or threat of violence.

¶11 A more serious error is the assumption that a reasonable lawyer might fear that solicitation could be connected with the crime being solicited--in this case, aggravated assault--so that the solicitation itself became a crime of violence. There is no authority supporting this proposition. Arizona authority, in fact, rejects it for two reasons. First, aggravated assault is not always a crime of violence because it may be committed recklessly or negligently and without either the intention of or knowledge about injuring anyone. See A.R.S. § 13-1204; State v. Fierro, 166 Ariz. 539, 549, 804 P.2d 72, 82 (1990). More important, the mere solicitation to commit an offense cannot be equated with the underlying offense. The solicitation statute criminalizes conduct that "encourages, requests or solicits another person to engage" in a felony or misdemeanor. See A.R.S. § 13-1002(A). The crime is completed by the solicitation and the "crime solicited need not be committed." W. LAFAVE & A. SCOTT, HANDBOOK ON CRIMINAL LAW 414, 420 (1972) (cited with approval in State v. Johnson, 131 Ariz. 299, 302 n. 1, 640 P.2d 861, 864 n. 1 (1982)). Thus, solicitation is a crime of communication, not violence, and the nature of the crime solicited does not transform the crime of solicitation into an aggravating circumstance.

¶12 Johnson makes this quite clear. Johnson solicited two undercover federal agents to use explosives to kill his enemy. He pleaded guilty to solicitation to commit murder. The enhancement statute for non-capital crimes requires the...