State v. Russell ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DEPREE DEVINE RUSSELL, Petitioner.
No. 1 CA-CR 13-0746 PRPC
Appeal from the Superior Court in Maricopa County
No. CR 1993-003255
The Honorable Jeanne M. Garcia, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Depree Devine Russell, Tucson
Petitioner
STATE v. RUSSELL
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maurice Portley delivered the decision of the Court, in
which Judge John C. Gemmill and Judge Michael J. Brown joined.
P O R T L E Y, Judge:
¶1 Depree D. Russell filed a petition for review with this court
after the trial court dismissed his petition for post-conviction relief. We
have considered his petition for review and, for the reasons that follow,
grant review, but deny relief.
¶2 Russell was convicted, after a jury trial, of first degree murder,
attempted armed robbery, first degree burglary, attempted kidnapping,
and conspiracy to commit armed robbery. Russell was subsequently
sentenced to an aggregate term of life imprisonment with a possibility of
parole after twenty-five years. We affirmed his convictions and sentences
on direct appeal. State v. Russell, 1 CA-CR 94-0227 (Ariz. App. Aug. 13,
1995) (mem. decision).
¶3 Russell then filed a series of unsuccessful petitions for post-
conviction relief or habeas corpus, beginning in October 1995, which were
summarily dismissed by the trial court, and any petitions for review were
dismissed. Russell filed a petition for post-conviction relief on August 19,
2013, which argued that his trial lawyer had a conflict of interest and was
ineffective for misleading him into rejecting the plea offer. After
consideration, the trial court summarily dismissed the petition.1 We have
jurisdiction to consider his petition for review pursuant to Arizona Rule of
Criminal Procedure 32.9(c).
¶4 Russell argues his trial counsel was ineffective during pretrial
plea negotiations. Russell further contends he is entitled to raise this claim
in a successive, untimely petition for post-conviction relief based on the
United States Supreme Court decisions of Missouri v. Frye, 132 S. Ct. 1399
(2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012), both of which, Russell
argues, are significant changes in the law. In both cases, the Supreme Court
held a defendant has a right to effective assistance of counsel during the
plea bargain process. Frye, 132 S. Ct. at 1407-08; Lafler, 132 S. Ct. at 1384. In
1 The ruling misstates that the August 2013 was only Russell’s second PCR.
2
STATE v. RUSSELL
Decision of the Court
Frye, the court further held the right to effective assistance includes the right
to have counsel communicate all formal, favorable plea offers to the
defendant. Frye, 132 S. Ct. at 1408.
¶5 We grant review of Russell’s petition. We note, however, that
although Frye and Lafler are recent pronouncements of the United States
Supreme Court, Arizona has recognized since at least 2001 that the right to
effective assistance of counsel extends to the plea bargain process, and that
counsel must adequately communicate all plea offers to the defendant.
State v. Donald, 198 Ariz. 406, 413, ¶¶ 14-17, 10 P.3d 1193, 1200 (App. 2000).2
Therefore, Frye and Lafler are not significant changes in the law as applied
in Arizona.
¶6 From 1995 through 2000, Russell filed a number of petitions
and raised a number of issues on post-conviction review, including the
effectiveness of his trial lawyer and the lawyer who handled his direct
appeal. Although he challenged his lawyer’s actions during trial, he never
complained of any deficiency related to the plea offer before Frye and Lafler.
He, however, could have included the allegations related to the plea
process, but did not. Moreover, he did not provide any facts to the trial
court other than the 2012 decisions for his failure to raise the plea offer
ineffective claim.3 Because our rules of procedure require that any claim a
defendant could have raised in an earlier post-conviction relief proceeding
must be raised or is precluded, Arizona Rule of Criminal Procedure 32.2(a),
2 In fact, the Supreme Court’s decision in Frye noted our holding in Donald.
Frye, 132 S. Ct. at 1409. Moreover, our supreme court clearly reiterated in
State ex rel. Thomas v. Rayes, that the issue of whether counsel was ineffective
for failing to communicate a written plea offer can only be resolved by a
post-trial Rule 32 proceeding. 214 Ariz. 411, 412, 414, ¶¶ 2-3, 16-20, 153 P.3d
1040, 1041, 1044 (2007).
3 In his petition for review, Russell raised factual claims that he did not raise
to the trial court. Specifically, he contends that his first trial lawyer, before
she withdrew, did not accurately portray the nature of the plea agreement,
misled him to believe he could not get a plea because he did not see the
shooting, and that she did not want him to testify against one of her former
clients in an unrelated matter. Although counsel had been in negotiations
with the State, Russell has not demonstrated that the State offered him a
plea agreement that he rejected, either before or after the lawyer withdrew
based on a perceived conflict. Because the facts in the petition for review
were not raised in the August 2013 petition, we cannot review them for the
first time on appeal. State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App.
1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).
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STATE v. RUSSELL
Decision of the Court
in order to avoid piecemeal challenges, the trial court did not err by
dismissing the August 2013 petition. Accordingly, we deny relief.
¶7 We grant review and deny relief.
4