State v. Wagner ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
PAUL DANIEL WAGNER, Petitioner.
No. 1 CA-CR 20-0198 PRPC
FILED 6-22-2021
Petition for Review from the Superior Court in Maricopa County
No. CR2014-149722-001
The Honorable Michael D. Gordon, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Daniel Strange
Counsel for Respondent
DM Cantor, Phoenix
By Courtney R. Sullivan, Christine Whalin
Counsel for Petitioner
STATE v. WAGNER
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins, Judge Randall M. Howe, and Judge
Maria Elena Cruz delivered the decision of the Court.
PER CURIAM:
¶1 Paul Daniel Wagner petitions for review of the dismissal of
his petition for post-conviction relief. We have considered the petition for
review and, for the reasons stated, grant review and deny relief.
¶2 In 2014, the State charged Wagner with one count of child
prostitution, a class 2 felony. The prosecutor subsequently presented
Wagner’s retained counsel with alternative “standard” plea offers, both of
which provided for three years of probation. One required Wagner admit
guilt to pandering, a class 5 felony, and serve 20 days in jail as a probation
condition. The other offer provided for a 95-day jail term in exchange for
Wagner admitting guilt to solicitation to commit child abuse, a class 6
undesignated felony. The superior court conducted a Donald advisement
where Wagner was informed of his potential punishment should he reject
the offers and proceed to trial. See State v. Donald, 198 Ariz. 406, 413, ¶ 14
(App. 2000) (“[O]nce the State engages in plea bargaining, the defendant
has a Sixth Amendment right to be adequately informed of the
consequences before deciding whether to accept or reject the offer.”).
Wagner rejected the offers.
¶3 The morning of the trial’s first day, the State re-extended both
offers, and the superior court held a second Donald advisement. Wagner
again rejected the offers.
¶4 At the conclusion of trial, the jury found Wagner guilty of the
charged offense, and the superior court imposed a seven-year prison term.
Wagner timely appealed. Wagner’s appointed counsel filed a brief in this
court pursuant to Anders v. California, 386 U.S. 738 (1967), but Wagner
subsequently dismissed the appeal.
¶5 Wagner then sought post-conviction relief under Arizona
Rule of Criminal Procedure (“Rule”) 32, raising claims of ineffective
assistance of counsel (“IAC”). The superior court summarily dismissed
most of Wagner’s claims, but it set an evidentiary hearing to determine
2
STATE v. WAGNER
Decision of the Court
whether trial counsel provided ineffective assistance by failing to provide
Wagner with copies of the State’s written plea offers and by advising
Wagner to reject the offers. See Donald, 198 at 413, ¶ 14 (IAC that led a
defendant to reject a favorable plea and proceed to trial is a cognizable claim
for post-conviction relief).
¶6 At the three-day hearing, Wagner, his mother, and his trial
counsel testified. The superior court denied relief, finding that counsel was
not required to provide written copies of the offers because he advised
Wagner of the offers’ “core terms,” and Wagner never indicated a desire to
accept either offer. The court also found the evidence did not demonstrate
that counsel advised Wagner to reject the offers. The court therefore
concluded that Wagner failed to establish counsel’s representation fell
below an objective standard of care.
¶7 The petition for review repeats Wagner’s arguments that trial
counsel provided ineffective assistance during plea negotiations.
Importantly, however, Wagner does not squarely address the superior
court’s determination that he failed to demonstrate that his trial counsel’s
conduct fell below prevailing professional norms. See State v. Bennett, 213
Ariz. 562, 567, ¶ 21 (2006) (“To state a colorable claim of ineffective
assistance of counsel, a defendant must show both that counsel’s
performance fell below objectively reasonable standards and that this
deficiency prejudiced the defendant.”). Specifically, Wagner does not
argue that the superior court erred by finding counsel was not required to
provide written copies of the plea offers or that Wagner failed to prove
counsel advised him to reject the offers. Rule 32 requires petitions for
review to present more than mere recitations of the arguments presented to
the superior court. Ariz. R. Civ. P. 32.16(c)(2)(D).
¶8 Wagner next claims he is entitled to post-conviction relief
because trial counsel purportedly advised him that entrapment was a viable
defense at trial when, to the contrary, entrapment “was not applicable
under prevailing law.” We do not address this issue because Wagner did
not raise it in his petition for post-conviction relief. See State v. Ramirez, 126
Ariz. 464, 468 (App. 1980) (this court does not address issues raised for the
first time in a petition for review).
¶9 Finally, Wagner argues trial and appellate counsel were
ineffective for failing to challenge the constitutionality of the child
prostitution statute. But Wagner had the opportunity to challenge the
statute on direct appeal by filing a supplemental brief in propria persona.
Instead of doing so, Wagner dismissed the appeal. This issue is therefore
3
STATE v. WAGNER
Decision of the Court
precluded. Ariz. R. Crim. P. 32.2(a)(3); see also State v. Clark, 196 Ariz. 530,
537, ¶ 30 (App. 1999) (in cases where defense counsel files an Anders brief,
this court’s procedure ensures the defendant’s right to effective assistance
of counsel is protected).
¶10 For the foregoing reasons, Wagner fails to establish an abuse
of the superior court’s discretion. See State v. Herrera, 183 Ariz. 642, 647
(App. 1995) (“A petition for post-conviction relief is addressed to the sound
discretion of the trial court.”); State v. Fritz, 157 Ariz. 139, 141 (App. 1988)
(determination of the credibility of witnesses at an evidentiary hearing in a
post-conviction relief proceeding rests solely with the trial judge).
Accordingly, we grant review and deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
4