State v. Lovelis ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MARION TRUMAN LOVELIS, Petitioner.
No. 1 CA-CR 20-0561 PRPC
FILED 7-13-2021
Petition for Review from the Superior Court in Maricopa County
No. CR2016-131260
The Honorable Ronee Korbin Steiner, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Andrea L. Kever
Counsel for Respondent
Sherick & Bleier PLLC, Tucson
By Adam N. Bleier, Steven P. Sherick
Counsel for Petitioner
STATE v. LOVELIS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Maria Elena Cruz joined.
P E R K I N S, Judge:
¶1 Marion Truman Lovelis petitions this court for review from
the superior court’s denial of his petition for post-conviction relief. For the
following reasons, we grant review but deny relief.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In June 2016, Lovelis’s wife contacted police after returning
home and finding Lovelis on top of a nude minor. The State charged Lovelis
with child molestation, sexual conduct with a minor, and sexual abuse.
¶3 During a settlement conference, the State informed Lovelis
that it conducted DNA testing on the victim’s underwear. The test revealed
the presence of acid phosphatase—a constituent of semen—with a DNA
profile matching Lovelis. But the underwear contained no sperm.
¶4 Lovelis maintained his innocence throughout the settlement
conference. The judge emphasized to Lovelis that “[Lovelis’s] sperm was
found in [the victim’s] underwear.” Lovelis responded that he was unaware
of any sperm evidence, prompting the prosecutor to search her files. The
prosecutor retrieved the report revealing acid phosphatase in the victim’s
underwear and Lovelis acknowledged his familiarity with the report. The
judge referred to the acid phosphatase evidence as “sperm” again, later in
the conference.
¶5 Lovelis pled guilty to attempted molestation of a child,
attempted sexual conduct with a minor, and sexual abuse. The superior
court sentenced Lovelis to the presumptive term of ten years’ imprisonment
on the attempted molestation count, followed by lifetime probation on the
other counts.
¶6 Lovelis petitioned for post-conviction relief. He argued he
involuntarily pled guilty because the State misrepresented the evidence
against him and that his attorney provided ineffective assistance by
perpetuating the misrepresentation.
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STATE v. LOVELIS
Decision of the Court
¶7 The superior court held an evidentiary hearing on Lovelis’s
petition. Lovelis testified he learned of the sperm evidence for the first time
at the settlement conference and that he pled guilty because of the
purported sperm evidence. Lovelis’s attorney testified that even without
sperm evidence linking Lovelis to the crimes, he doubted Lovelis would
succeed at trial given Lovelis’s wife’s testimony.
¶8 The superior court denied Lovelis’s petition for post-
conviction relief, and this petition for review followed. We have jurisdiction
under A.R.S. § 13-4239(C) and Ariz. R. Crim. P. 33.16.
DISCUSSION
¶9 Lovelis argues he involuntarily pled guilty because the State
misrepresented the evidence against him and that his attorney provided
ineffective assistance by perpetuating the misrepresentation. Absent an
abuse of discretion, we will not disturb the superior court’s denial of post-
conviction relief. State v. Amaral, 239 Ariz. 217, 219, ¶ 9 (2016).
I. Invalid Plea
¶10 Lovelis first argues the references to sperm evidence
amounted to a factual misrepresentation that induced him to plead guilty.
A plea induced by misrepresentation is invalid. See Brady v. United States,
397 U.S. 742, 755 (1970). But to obtain relief on that basis, Lovelis must
present “substantial objective evidence” that his “mistaken subjective
impression[]” was “reasonably justified.” See State v. Pritchett, 27 Ariz. App.
701, 703 (App. 1976).
¶11 Lovelis fails to explain how any reliance he placed on the
nonexistent sperm evidence was justified. During the settlement
conference, the State and Lovelis’s counsel confirmed that no DNA
evidence existed other than the positive test for acid phosphatase. Lovelis
proclaimed he understood, and the conference proceeded. It is
unreasonable for Lovelis to now claim that he relied on nonexistent sperm
evidence when deciding to plead guilty.
II. Ineffective Assistance of Counsel
¶12 Lovelis next contends the superior court erred in rejecting his
ineffective assistance of counsel claim. Lovelis argues his attorney misled
him to believe the State possessed sperm evidence.
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STATE v. LOVELIS
Decision of the Court
¶13 To succeed on a “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.” State v. Bennett, 213 Ariz. 562, 567, ¶ 21 (2006). We need not
address both deficient performance and prejudice “if the defendant makes
an insufficient showing on one.” State v. Pandeli, 242 Ariz. 175, 181, ¶ 6
(2017) (quoting Strickland v. Washington, 466 U.S. 668, 697 (1984)).
¶14 Lovelis fails to articulate with any particularity how his
counsel misled him to believe the State possessed sperm evidence. As
discussed above, Lovelis’s counsel expressly confirmed with the
prosecutor—in front of Lovelis—that no DNA evidence existed other than
the positive test for acid phosphatase. The superior court acted within its
discretion in rejecting Lovelis’s ineffective assistance of counsel claim.
CONCLUSION
¶15 We grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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