State v. Seibert

ESPINOSA, Judge

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See
Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Pinal County
Nos. S1100CR201402063 and S1100CR201502543
The Honorable Stephen F. McCarville, Judge

COUNSEL Kent P. Volkmer, Pinal County Attorney
By Thomas C. McDermott, Appellate Bureau Chief
Counsel for Respondent
Flores & Clark PC, Globe
By Daisy Flores and Ramai L. Alvarez
Counsel for Petitioner

Judge Espinosa authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Eckerstrom concurred. ESPINOSA, Judge:

¶1 Petitioner Steven Seibert seeks review of the trial court's order denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007). Because we conclude such an abuse occurred here, we grant relief.

¶2 Pursuant to plea agreements in two causes, Seibert was convicted of possession of drug paraphernalia and possession of a narcotic drug for sale. The trial court sentenced him to concurrent prison terms, the longer of which, for the possession for sale count, was five years.

¶3 Seibert thereafter sought post-conviction relief, arguing in identical petitions filed in each cause that he had received ineffective assistance of counsel. He alleged counsel had been ill during the pendency of an initial plea offer for a 3.5-year prison term on the possession for sale charge, which expired before she was able to consult with him. He included an affidavit from counsel stating she had been sick and unable to discuss the plea offer with Seibert before it expired. After an evidentiary hearing on the matter, the trial court denied relief, concluding counsel had "d[one] nothing wrong" and Seibert had not established prejudice because he did not "indicate any desire to accept the original offer."

¶4 Our review of the trial court's factual findings "is limited to a determination of whether those findings are clearly erroneous"; we "view the facts in the light most favorable to sustaining the lower court's ruling, and we must resolve all reasonable inferences against the defendant." State v. Sasak, 178 Ariz. 182, 186 (App. 1993); see also State v. Fritz, 157 Ariz. 139, 141 (App. 1988) (trial court sole arbiter of witness credibility in post-conviction proceeding). When "the trial court's ruling is based on substantial evidence, this court will affirm." Sasak, 178 Ariz. at 186.

¶5 In this case, however, although we defer to the trial court's findings, we cannot say its legal conclusions are supported by the evidence presented. At the Rule 32 hearing, Seibert's counsel testified she had first represented him in January 2017 and explained that an offer for 3.5 years in prison had been extended by the state at his release hearing. At that time, the prosecutor had stated the range of penalties Seibert faced and the plea that was being offered. But no one had asked Seibert if he understood or if the offer had been discussed with counsel.

¶6 At the Rule 32 hearing, Seibert explained that at the time of the release hearing he had recently suffered "serious brain trauma" and been in a coma, and stated he had not clearly understood what was explained and wanted counsel's "advice on whether to accept the plea." Counsel testified she had "spoke[n] with [Seibert] briefly back at the jail portion of the courtroom" after the release hearing and told him she would "be seeing him within the week, before the next hearing." She conceded that the next hearing had actually been scheduled for more than a week in the future, but the deadline for the plea had been a week away, on February 3. She testified that Seibert had told her he wanted to discuss the plea further and that "he did still have questions." She also did not recall having "discuss[ed] the facts of the case or the pros and cons of taking the plea" before the hearing, having instead focused on "preparing for th[e] upcoming release hearing."

¶7 Counsel became ill early in the following week and "was out for the rest of the week"; as a result, she was unable to meet with Seibert before the plea deadline. Counsel asked for an extension from the prosecutor by email on February 2, but the prosecutor declined to afford Seibert additional time to consider the plea. Seibert attempted to contact counsel either on February 3 or the day before, but she did not speak with him until the "middle of February." A few weeks after the hearing, on February 14, Seibert telephoned his mother and told her he was "not signing for 3.5" and would "stay in jail until" the state offered "what [he] wanted." He agreed at the hearing that he had also said he "would take two years, but not 3.5 years."

¶8 When counsel met with Seibert in mid-February, apparently after the phone calls to his family, she explained that the plea deadline had passed and accepted fault. She testified Seibert had been "understandably upset," but the two agreed to continue to try to negotiate with the state, with Seibert wanting to put the 3.5-year offer "back on the table." Seibert ultimately accepted a plea offer for a five-year term after the state refused to re-offer the 3.5-year plea.

¶9 "[C]laims of ineffective assistance of counsel in the plea bargain context are governed by the two-part test set forth" in Strickland v. Washington, 466 U.S. 668 (1984). Missouri v. Frye, 566 U.S. 134, 140 (2012). To establish a claim of ineffective assistance under that test, a "defendant must show that counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. To show prejudice, a defendant must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is [one] sufficient to undermine confidence in the outcome." Id.

¶10 In this case, despite acknowledging the Strickland test in its ruling, the trial court essentially "found that respondent's rejection of the plea was knowing and voluntary," as did the lower court in Lafler v. Cooper, 566 U.S. 156, 173 (2012). The court in this case determined Seibert had not stated a colorable claim because he "had known the terms of the plea" and "the consequences of accepting and rejecting the plea," but had not "indicate[d] any desire to accept the original offer." "An inquiry into whether the rejection of a plea is knowing and voluntary, however, is not the correct means by which to address a claim of ineffective assistance of counsel." Id.

¶11 Rather, the focus of the Strickland analysis is on counsel's conduct and the consequences thereof. The trial court concluded counsel "did nothing wrong," but we cannot agree. Although as the court pointed out, counsel attempted to mitigate her failure to consult with Seibert by contacting the state to request more time, that request did not erase the fact that counsel left Seibert without counsel during the pendency of the plea offer. Indeed, as counsel testified at the evidentiary hearing, she did not expect that a person in custody would be able to "on their own, somehow reach out to the State and accept a plea." Counsel's conduct in failing to contact Seibert was deficient as she failed to give Seibert "information necessary to allow [him] to make an informed decision whether to accept the plea." State v. Donald, 198 Ariz. 406, ¶ 16 (App. 2000). And nothing in the record shows Seibert's attorney acted to ensure that other counsel from her office would confer with him in her stead before the expiration of the offer. Indeed, on the record before us, as detailed above, she essentially failed to give him any guidance at all in regard to the plea.

¶12 "If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice can be shown if loss of the plea opportunity led to . . . imposition of a more severe sentence." Lafler, 566 U.S. at 168. Although as the trial court found, Seibert did not indicate he would accept the plea at the time of the release hearing or before the expiration of the plea, he had not had the benefit of counsel at that point. In view of his having attempted to secure the initial plea from the state upon consultation with counsel and having ultimately accepted a plea, Seibert was prejudiced by counsel's failure to consult with him before the plea offer's expiration.

¶13 For these reasons, we grant the petition for review and grant relief, remanding the matter for further proceedings consistent with this decision and Donald.