State v. Andrich ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DEVIN ANDRICH, Petitioner.
No. 1 CA-CR 18-0600 PRPC
FILED 1-10-2019
Petition for Review from the Superior Court in Maricopa County
No. CR2014-108114-001
The Honorable Pamela S. Gates, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Jeffrey R. Duvendack
Counsel for Respondent
Devin Andrich, Phoenix
Petitioner
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the court, in
which Judge Maria Elena Cruz and Judge Randall M. Howe joined.
STATE v. ANDRICH
Decision of the Court
J O H N S E N, Judge:
¶1 Devin Andrich petitions this court for review from the
dismissal of his petition for post-conviction relief of-right ("PCR") filed
pursuant to Arizona Rule of Criminal Procedure 32.1. We have considered
the petition for review and, for the reasons stated, grant review but deny
relief.
¶2 Andrich pled guilty in 2015 to one count of fraudulent
schemes and artifices (Count 1), one count of theft (Count 2) and one count
of forgery (Count 3). As part of the plea agreement, he stipulated to a term
of 3.5 years' imprisonment on Count 2 and supervised probation on Counts
1 and 3, to commence upon his release from prison. Andrich's plea
agreement stated, in boldface capital letters, "Defendant Specifically Agrees
to the Restitution in the Attached Addendum of this Plea Agreement," and
the addendum listed payments totaling $395,624.83 to 16 victims. In
exchange for Andrich's plea, the State agreed to forgo filing nine additional
theft charges against him.
¶3 At the change-of-plea hearing, the superior court deferred
acceptance of the plea to allow the prosecutor to verify the restitution
amounts set forth in the addendum. At the sentencing hearing held a few
months later, the prosecutor provided a revised stipulated addendum, but
also notified the court that she anticipated reducing the restitution for
victim K.K., adding that defense counsel did not object to "a lesser amount
for that victim."
¶4 The superior court then invited defense counsel and Andrich
to address the addendum listing the stipulated restitution amounts.
Defense counsel characterized the restitution amounts as "fair," and
Andrich stated that the parties had a "hard time" reaching a consensus and
asserted that he had "taken the high road" and had "agreed to [the]
numbers" to resolve the matter.
¶5 The superior court then sentenced Andrich in accordance
with the terms of the plea agreement, ordering Andrich to pay the
stipulated restitution. The court also set a non-witness hearing to address
any outstanding restitution issues, and the prosecutor told the court that
she would move to vacate that hearing if she did not have any additional
changes to the restitution amounts. Weeks later, the court vacated the
hearing at counsel's request.
2
STATE v. ANDRICH
Decision of the Court
¶6 Shortly thereafter, Andrich timely commenced Rule 32
proceedings. Before he filed a petition, however, the State moved to amend
the plea agreement by reducing the amount of restitution awarded to K.K.
The superior court granted the unopposed motion and reduced Andrich's
restitution obligation accordingly.
¶7 In his PCR, Andrich asserted his trial counsel was ineffective
by: (1) failing to provide the State with certain documents that challenged
the stipulated restitution amounts, (2) "conspiring with the State" to vacate
the non-witness restitution hearing, (3) failing to preserve Andrich's case
file and destroying all electronic correspondence contained therein, (4)
refusing to withdraw as counsel, and (5) failing to preserve Andrich's
laptop and server. In addition, Andrich argued that the prosecutor
engaged in misconduct by: (1) "conspiring" with defense counsel to vacate
the non-witness restitution hearing, (2) withholding mitigating evidence
related to certain restitution claims, (3) assisting K.K. in the commission of
bankruptcy fraud, and (4) refusing to investigate the purported theft of
Andrich's laptop and hard drives. Finally, Andrich contended that the
superior court erred by failing to timely rule on his post-sentencing motion
to terminate counsel. The court dismissed the PCR and this petition for
review followed.
¶8 Absent an abuse of discretion or error of law, this court will
not disturb a superior court's ruling on a petition for post-conviction relief.
State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). It is the petitioner's burden
to show that the superior court abused its discretion. See State v. Poblete, 227
Ariz. 537, 538, ¶ 1 (App. 2011).
¶9 On review, Andrich argues the superior court abused its
discretion by: (1) dismissing his PCR without granting an evidentiary
hearing, (2) failing to grant his motion for self-representation before
vacating the non-witness restitution hearing, thereby denying him the
opportunity to contest the restitution amounts, and (3) failing to correct the
restitution amounts owed in accordance with the figures provided by the
State Bar Association Client Protection Fund.1 In addition, Andrich
contends the State engaged in prosecutorial misconduct by: (1) failing to
investigate the theft of his laptop and hard drives, which, according to
1 Contrary to Aldrich's contention, when the superior court dismissed
his petition, it found that certain victims had received compensation from
the State Bar Association Client Protection Fund and reduced the restitution
amounts "owed directly" to those victims "to prevent a windfall."
3
STATE v. ANDRICH
Decision of the Court
Andrich, contained copies of his client files and could prove at least some
of the restitution claims false, and (2) withholding information that
demonstrated he owed substantially less restitution to the victims. Finally,
Andrich asserts that: (1) trial counsel was ineffective by failing to secure his
client files and contest the stipulated restitution amounts, and (2) post-
conviction relief counsel was ineffective by failing to obtain
communications between Andrich and trial counsel.
¶10 To support his contention that he was entitled to an
evidentiary hearing, Andrich cites Hoffman v. Chandler ex rel. County of Pima,
231 Ariz. 362, 366, ¶ 19 (2013), in which the supreme court held that a Rule
32 proceeding is the only vehicle available for challenging a contested
restitution order "entered pursuant to a plea agreement that contemplated
payment of restitution and capped the amount." However, unlike the
contested restitution at issue in Hoffman, in this case, Andrich stipulated to
the precise restitution amounts ordered, except for the lesser amount
ultimately awarded to K.K. As the superior court noted in dismissing
Andrich's petition, the stipulated restitution amounts were not subject to
revision except to the extent the State moved to reduce the agreed-upon
amounts. Therefore, Hoffman is inapposite, and Andrich's reliance is
misplaced.
¶11 By his own admission, Andrich stipulated to the precise
restitution amounts so he could resolve all the pending charges via a plea
agreement, see Rule 17.4(a)(1) (permitting parties to negotiate and reach
agreement "on any aspect of a case"), and, having received the full benefit
of that agreement, he cannot now challenge its stipulated terms. Cf. State v.
Hawkins, 134 Ariz. 403 (App. 1982) (defendant entitled to withdraw plea
when sentencing court orders different or larger amount of restitution than
he agreed to pay). By entering a guilty plea and stipulating to the precise
restitution amounts, Andrich waived "all non-jurisdictional defects and
defenses, including claims of ineffective assistance of counsel, except those
that relate to the validity of [his] plea." State v. Leyva, 241 Ariz. 521, 527, ¶
18 (App. 2017) (internal quotation omitted).2
¶12 Because Andrich does not contest that he had the mental
capacity to knowingly, intelligently and voluntarily enter the plea, we do
2 In any event, beyond conclusory allegations, Andrich fails to show
how the various information and documents he asserts his lawyers should
have gathered would have disproved or undermined the restitution
amounts he agreed to pay.
4
STATE v. ANDRICH
Decision of the Court
not consider his various challenges to the factual basis for his plea or the
stipulated restitution amounts, whether framed as trial error, prosecutorial
misconduct, or ineffective assistance of counsel.3 Therefore, Andrich has
failed to show that the superior court abused its discretion in denying his
PCR.
¶13 For these reasons, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
3 To the extent Andrich contends his former counsel, the State or the
State Bar engaged in misconduct by failing to protect, investigate or recover
his allegedly stolen client files, a Rule 32 proceeding is not the proper
vehicle for relief.
5