State v. Cooper ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Petitioner,
v.
ANTONIO RAYELL COOPER, JR., Respondent.
No. 1 CA-CR 21-0421 PRPC
FILED 3-2-2023
Petition for Review from the Superior Court in Maricopa County
Nos. CR2011-142001-001, CR2016-114883-001
The Honorable Gregory S. Como, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Andrea L. Kever
Counsel for Petitioner
The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Respondent
STATE v. COOPER
Decision of the Court
MEMORANDUM DECISION
Presiding Judge David D. Weinzweig, Judge Randall M. Howe and Judge
D. Steven Williams delivered the decision of the Court.
PER CURIUM:
¶1 Both parties petition for review from the superior court’s
order granting in part and denying in part the petition for post-conviction
relief (“PCR”) filed by Antonio Rayell Cooper, Jr. We grant review but deny
relief.
FACTS AND PROCEDURAL BACKGROUND
¶2 A jury found Cooper guilty of three counts of attempted
assault with a vicious animal, one count of aggravated assault, one count of
resisting arrest, and one count of threatening or intimidating. The superior
court sentenced Cooper to an aggregate term of 24 years’ imprisonment.
Cooper appealed, and we affirmed his convictions and sentences. See State
v. Cooper, 1 CA-CR 16-0869, 2018 WL 6217090, at *1, ¶ 1 (Ariz. App. Nov.
29, 2018).
¶3 Cooper then petitioned for PCR, arguing trial counsel
provided ineffective assistance by failing to (1) challenge the admission of
gang status evidence and the related jury instructions; (2) adequately
investigate and prepare for trial; and (3) properly negotiate a plea offer.
¶4 Shortly after Cooper filed his petition, the Arizona Supreme
Court declared the sentencing enhancement in A.R.S. § 13-1202(B)(2) to be
unconstitutional. State v. Arevalo, 249 Ariz. 370, 373, ¶ 5 (2020). The Court
concluded that the enhancement violated substantive due process by
enhancing a defendant’s “criminal penalties based solely on gang status
without a sufficient nexus between gang membership and the underlying
crime of threatening or intimidating.” Id. at 375, ¶ 20. It held that the
enhancement authorized “what due process forbids—punishment based
solely on associational status.” Id. at 375, ¶ 19.
¶5 Cooper supplemented his petition, arguing that Arevalo
supported his claim that counsel should have challenged the admission of
gang status evidence related to the A.R.S. § 13-1202(B)(2) enhancement. The
State opposed Cooper’s claims of ineffective assistance of counsel, arguing
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STATE v. COOPER
Decision of the Court
the ruling in Arevalo only required the superior court to designate the
threatening or intimidating offense a misdemeanor.
¶6 The superior court found Cooper presented colorable claims
for relief. After conducting an evidentiary hearing, the court granted
Cooper’s petition for PCR in part, finding counsel failed to effectively
challenge the admission of gang status evidence and prepare for trial, but
denied Cooper’s claim that counsel provided ineffective assistance during
plea negotiations. The court vacated Cooper’s convictions and sentences,
and granted a new trial. The State’s petition and Cooper’s cross-petition
followed.
DISCUSSION
I. The State’s Petition for Review
¶7 The State argues the superior court erred in granting Cooper
a new trial based on ineffective assistance of trial counsel. We review a
court’s grant of PCR for an abuse of discretion. State v. Jenkins, 193 Ariz.
115, 118, ¶ 5 (App. 1998). We defer to the court’s assessment of “the factual
disputes that frequently underlie assertions of ineffective assistance of
counsel,” see State v. Herrera, 183 Ariz. 642, 646 (App. 1995), as well as the
court’s determination of witness credibility, see State v. King, 250 Ariz. 433,
439, ¶ 21 (App. 2021).
¶8 A defendant is constitutionally entitled to effective assistance
of counsel. See State v. Petty, 225 Ariz. 369, 372, ¶ 9 (App. 2010). To prove
ineffective assistance of counsel, a defendant must show counsel’s
performance fell below objectively reasonable standards and that deficient
performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668,
687–88 (1984). Both prongs must be satisfied. See State v. Bennett, 213 Ariz.
562, 567, ¶ 21 (2006).
¶9 To establish prejudice, a defendant must demonstrate a
“reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland, 466 U.S. at
694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” State v. Miller, 251 Ariz. 99, 104, ¶ 17 (2021).
The deficiency inquiry hinges on whether counsel’s performance
comported with prevailing professional norms. See State v. Pandeli, 242
Ariz. 175, 180, ¶ 5 (2017). A defendant proves a deficiency if he shows
“counsel’s decision was not a tactical one but, rather, revealed ineptitude,
inexperience or lack of preparation.” State v. Goswick, 142 Ariz. 582, 586
(1984).
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STATE v. COOPER
Decision of the Court
¶10 We ask first whether counsel’s failure to challenge the
admission of gang status evidence—either through objection or severance
requests—amounted to ineffective assistance of counsel. At trial, the State
presented gang status evidence for the sole purpose of enhancing the
threatening or intimidating offense to a class 6 felony. Multiple officers
testified that Cooper was a member of “Hellbound Gangsters,” a gang that
used physical violence to initiate or “jump in” prospective members. The
State admitted photographs of Cooper’s tattoos, depicting devil imagery
and references to the “Hellbound Gangsters.” Counsel briefly
cross-examined the officers but did not object or request severance of the
threatening or intimidating offense.
¶11 At the close of the State’s case, Cooper informed the superior
court that the gang status evidence influenced his decision not to testify.
Counsel called no witnesses. The State discussed the gang status evidence
in its closing remarks, characterizing it as “undisputed.” Counsel argued
in closing remarks that the State did not present evidence of Cooper’s
ongoing association with an organized gang and the law required such
proof. The court instructed the jury on the definition of a criminal street
gang and that the State needed to prove Cooper was a member of a criminal
street gang to find him guilty of the crime of threatening or intimidating.
During jury deliberations, a juror asked whether the gang must be
organized and, without objection from counsel, the court instructed the jury
that “Arizona law does not specify whether a gang must be organized to be
a criminal street gang.”
¶12 At the PCR hearing, counsel testified that she did not
challenge the admission of gang status evidence because the State had to
prove the A.R.S. § 13-1202(B)(2) enhancement as an element of the offense.
She viewed this decision as common practice before Arevalo. Counsel stated
that she did not request severance of the threatening or intimidating offense
for similar reasons, adding that she felt the gang status evidence had no
impact on the remaining offenses.
¶13 The superior court found that, based on the language of
A.R.S. § 13-1202(B)(2), counsel should have known Cooper’s gang status
served solely to enhance his sentence and should have challenged its
admission in the guilt phase of trial. The court added that counsel should
have understood the function of such evidence before Arevalo. The court
concluded that counsel’s failure to challenge the gang status evidence
resulted in prejudice “given the public’s negative perception of street gangs
and their members.” We agree.
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STATE v. COOPER
Decision of the Court
¶14 Counsel’s failure to challenge the gang status evidence—at
any stage of the proceedings—constituted ineffective assistance. From
counsel’s failure to seek severance to her confusion regarding the criminal
street gang instructions, the record shows that counsel’s decisions were not
tactical but the result of a lack of preparation and knowledge of the law. See
State v. Lopez, 3 Ariz. App. 200, 205–06 (1966) (counsel’s failure to challenge
incriminating evidence resulted from lack of preparedness and constituted
ineffective assistance of counsel). As determined by the superior court,
counsel should have known the gang status evidence served solely to
enhance the threatening or intimidating offense and should have
challenged its admission in the guilt phase of trial. See State v. Olsen, 157
Ariz. 603, 607 (App. 1988) (sentencing enhancement is distinct from an
element of the offense). Although issued after Cooper’s trial, the ruling in
Arevalo recognized a plain reading of “[t]he statutory structure of § 13-1202
further dispels the notion that (B)(2) serves any purpose other than to
enhance punishment based solely on gang status.” Arevalo, 249 Ariz. at 376,
¶ 23. Moreover, counsel’s failure to adequately cross-examine witnesses
provided further evidence of ineffectiveness, allowing Cooper’s gang status
to go largely undisputed.
¶15 Having found deficient performance, we agree with the
superior court’s finding that the gang status evidence resulted in prejudice.
The jury heard testimony from multiple officers regarding Cooper’s gang
status, viewed images of gang-related tattoos, and learned of the gang’s
violent tactics. The admission of such evidence impacted Cooper’s decision
not to testify, the State used the evidence in closing remarks, and the court
provided related jury instructions. Cooper demonstrated a reasonable
probability that the unchallenged evidence, when viewed together,
impacted the outcome of trial. We find no abuse of discretion in granting
relief as to this claim.
¶16 We next turn to whether counsel’s failure to adequately
prepare for trial constituted ineffective assistance. The evidence at trial
showed that an unidentified male witnessed the offenses. A police report
admitted at the PCR hearing revealed the eyewitness was Cooper’s brother,
who spoke to officers at the scene and said he believed Cooper’s conduct
was either justified or unintentional, and he felt the other witnesses were
lying. At the PCR hearing, the brother testified consistent with the report
and provided additional details as to Cooper’s state of mind before and
during the offenses. He also avowed that Cooper’s counsel never contacted
him.
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STATE v. COOPER
Decision of the Court
¶17 At the PCR hearing, Cooper’s trial counsel testified that an
investigator tried but never reached Cooper’s brother. The record does not
reflect that an investigator was ever appointed. Counsel also
acknowledged that, based solely on her review of the police report, she
assumed the brother would be viewed as combative and unconvincing. She
maintained that the brother’s eyewitness testimony would not have
benefited the defense, even though the testimony would have contradicted
the State’s narrative. The superior court concluded that counsel’s failure to
contact or interview an eyewitness fell below professional norms and
resulted in prejudice. We agree.
¶18 The record shows that counsel made no attempt to contact or
interview a material eyewitness. Thus, as the superior court noted, counsel
could not have made a tactical decision about whether the witness would
“help or hurt” the defense. Counsel failed to meet her “duty to engage in
adequate investigation of possible defenses,” State v. Denz, 232 Ariz. 441,
445, ¶ 11 (App. 2013), and Cooper demonstrated the failure “resulted in not
presenting evidence or interposing a defense which would have made a
crucial difference to the case at the trial,” State v. Watson, 120 Ariz. 441, 450
(1978). Moreover, we defer to the court’s assessment of counsel’s
credibility. See State v. Newell, 212 Ariz. 389, 401 (2006). Cooper
demonstrated that counsel’s failure to contact an eyewitness before trial
was not “reasonable considering all the circumstances.” Strickland, 466 U.S.
at 688. The court did not abuse its discretion in granting relief as to this
claim.
II. Cooper’s Cross-Petition for Review
¶19 Cooper argues the superior court erred in denying his claim
of ineffective assistance of trial counsel during plea negotiations. A
defendant has no constitutional right to a plea offer, only the right to be
adequately informed once an offer is made. See State v. Donald, 198 Ariz.
406, 413, ¶ 14 (App. 2000). Absent misconduct, the State (or any party) may
withdraw a plea offer at any time before accepted. See Ariz. R. Crim. P.
17.4(b). Deficient performance during plea negotiations occurs if counsel
“either (1) gave erroneous advice or (2) failed to give information necessary
to allow the petitioner to make an informed decision whether to accept the
plea.” Id. ¶ 16. Prejudice results where there is “a reasonable probability
that, absent his attorney’s deficient advice, he would have accepted the plea
offer and declined to go forward to trial.” Donald, 198 Ariz. at 414, ¶ 20
(internal quotations and citations omitted).
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STATE v. COOPER
Decision of the Court
¶20 The State made two plea offers before trial; the first stipulated
to eight years’ imprisonment and the second stipulated to ten years’
imprisonment. Cooper learned of both plea offers, received written copies
of the plea agreement, and criticized their “harshness and severity.” The
State ultimately withdrew the first plea offer, and Cooper rejected the
second offer after a settlement conference. Counsel testified at the PCR
hearing that Cooper expressed concerns with errors in the written plea
agreements, but she informed him of the sentencing stipulations and
explained that such errors were easily corrected. Cooper testified that the
errors caused him to reject the plea offers, and acknowledged he discussed
each offer with counsel and understood the sentencing stipulations. The
superior court found that Cooper’s failure to accept the plea offers did not
result from ineffective assistance of counsel.
¶21 The superior court did not abuse its discretion. Any errors in
the written plea agreements did not materially impact Cooper’s decision to
accept or reject the plea offers. Cooper learned of the nature of the plea
offers, the proposed sentencing stipulations, and his exposure after trial.
Nothing from the PCR hearing established that Cooper received inaccurate
advice or lacked enough information to make an informed decision. See
Donald, 198 Ariz. at 413, ¶ 16. And, even if counsel performed deficiently,
the record does not show a reasonable probability that Cooper would have
accepted the plea offers. See id. at 414, ¶ 20. Cooper criticized the offers as
too harsh on multiple occasions.
¶22 Finally, Cooper asks that we determine whether counsel’s
failure to challenge the criminal street gang instructions rendered her
ineffective, arguing the superior court did not explicitly rule on this claim.
The court, however, implicitly granted this claim by finding counsel
ineffective for her overall handling of the gang status evidence. Finding no
abuse of discretion in that ruling, we need not address this request further.
See State v. Zamora, 220 Ariz. 63, 67, ¶ 7 (App. 2009) (reviewing court will
infer any necessary findings to affirm the lower court’s ruling).
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STATE v. COOPER
Decision of the Court
CONCLUSION
¶23 We grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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