State v. Begay ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MARCUS BEGAY, Petitioner.
No. 1 CA-CR 18-0683 PRPC
FILED 1-22-2019
Petition for Review from the Superior Court in Maricopa County
No. CR2008-009270-001 DT
The Honorable John R. Doody, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Gerald R. Grant
Counsel for Respondent
Marcus Begay, Florence
Petitioner
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge Kenton D. Jones joined.
STATE v. BEGAY
Decision of the Court
W I N T H R O P, Judge:
¶1 Marcus Begay timely petitions this court for review of the
dismissal of his petition for post-conviction relief filed pursuant to Arizona
Rule of Criminal Procedure (“Rule”) 32. See Ariz. R. Crim. P. 32.9(c); Ariz.
Rev. Stat. § 13-4239(C). We have considered the petition for review and, for
the reasons stated, grant review but deny relief.
¶2 Begay pled guilty to one count of kidnapping, a class two
felony, and two counts of attempted sexual assault, each a class three
felony. The superior court sentenced Begay to the slightly aggravated term
of eight years’ imprisonment for the kidnapping offense, to be followed by
lifetime probation with sex offender terms for the attempted sexual assault
offenses.
¶3 Begay completed his prison term, and his probation period
commenced in 2016. Approximately ten months later, the probation
department filed a petition to revoke his probation, alleging that Begay
failed to pay probation service fees, failed to participate in or attend sex
offender treatment, and consumed or possessed alcohol.
¶4 Before the probation violation hearing, the superior court
granted appointed counsel’s motion for a competency evaluation of Begay
and ordered a second evaluation on its own motion. On each occasion,
mental health experts evaluated Begay. Although Begay was
uncooperative, angry, and highly resistant to the evaluation process, the
experts all found him “competent to stand trial.” Based upon these
findings, the court proceeded to the hearing.
¶5 At the probation violation hearing, Begay’s probation officer
and surveillance officer testified as to each of his probation violations.
These witnesses specifically testified that, on at least two occasions, Begay
showed signs of alcohol consumption and intoxication in violation of his
probation. The court found that the State proved three of four alleged
probation violations. The court advised the parties that it was considering
imposing an aggravated sentence and, per Begay’s counsel’s request, set
disposition for a later date.
¶6 At the disposition hearing, Begay’s counsel attempted to
provide the superior court with mitigation, but Begay refused to speak with
counsel or provide a statement on his own behalf. The court found that at
least three aggravating factors applied, and, as to one count, revoked
Begay’s probation and sentenced him to an aggravated term of eight years’
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STATE v. BEGAY
Decision of the Court
imprisonment. For the remaining count, the court reinstated Begay to
lifetime probation with sex offender terms, to run consecutively to his term
of imprisonment.
¶7 Begay filed a timely petition for post-conviction relief. The
superior court summarily denied Begay’s petition, and he now seeks
review.
¶8 On review, Begay asserts a claim of ineffective assistance of
counsel during his probation violation and disposition hearings. Begay
argues counsel failed to familiarize himself with the facts and circumstances
of the case, allowed the superior court to rely on inaccurate facts, and failed
to object to the court’s use of aggravating factors in imposing Begay’s
sentence. Begay further contends that the court refused to review his
petition for post-conviction relief.
¶9 Whether to grant or deny post-conviction relief pursuant to
Rule 32 is within the superior court’s discretion. State v. Schrock, 149 Ariz.
433, 441 (1986). We will not reverse the court’s decision absent an abuse of
discretion. Id.¶10 Though not entitled to a “full-blown trial,” a defendant facing
revocation of his probation has the right to counsel. State v. Sanchez, 19 Ariz.
App. 253, 254 (1973). To prevail on a claim of ineffective assistance of such
counsel, a defendant must show that counsel’s performance fell below
objectively reasonable standards and that the deficient performance
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687-88
(1984), superseded by statute on other grounds, Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996); State
v. Nash, 143 Ariz. 392, 397 (1985). A defendant has only met this burden
“when it is shown that the proceedings were a farce or a sham.” State v.
Martinez, 19 Ariz. App. 417, 418 (1973) (citing State v. Kruchten, 101 Ariz.
186, 197 (1966)). Counsel’s strategic decisions, even if unsuccessful, do not
amount to ineffective assistance of counsel without a showing of prejudice.
See State v. Valdez, 160 Ariz. 9, 14-15 (1989), departed from on other grounds by
Krone v. Hotham, 181 Ariz. 364, 366-67 (1995). The superior court need not
grant relief based on mere generalizations and unsubstantiated claims of
ineffective assistance of counsel. State v. Borbon, 146 Ariz. 392, 399 (1985).
¶11 Begay fails to meet this standard. First, Begay provides no
supporting facts, legal authority, or citations to the record to demonstrate
ineffective assistance of counsel. See Ariz. R. Crim. P. 32.9(c)(4)(B)
(requiring the petition for review to contain specific citations to the record,
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STATE v. BEGAY
Decision of the Court
material facts, and, if possible, supporting legal authority). Second, the
record does not show that counsel’s performance fell below objectively
reasonable standards or that his performance caused prejudice. See
Strickland, 466 U.S. at 687-88. Throughout the probation proceedings, Begay
was combative with both counsel and the court.1 Without cooperation from
Begay, counsel attempted to show Begay did not commit the alleged
probation violations and argued for leniency. Moreover, given the nature
of the charges and Begay’s conduct during the proceedings, counsel’s
performance did not negatively impact the court’s ultimate disposition of
Begay’s probation.
¶12 Begay’s contention that the superior court refused to review
his petition for post-conviction relief similarly fails. Again, Begay provides
no supporting facts or citations to the record to establish this claim. See
Ariz. R. Crim. P. 32.9(c)(4)(B). A petitioner must “strictly comply” with
Rule 32 to be entitled to relief. Canion v. Cole, 210 Ariz. 598, 600, ¶ 11 (2005)
(citation omitted). Therefore, the superior court did not abuse its discretion
in denying Begay’s petition for post-conviction relief.
¶13 Lastly, although Begay argued the superior court imposed an
illegal sentence in his petition for post-conviction relief, he failed to directly
raise the issue on review. A petition for review may not present issues or
arguments through mere incorporation by reference. See Ariz. R. Crim. P.
32.9(c)(4)(B). Accordingly, we decline to address any claims not directly
presented in the petition for review. See State v. Rodriguez, 227 Ariz. 58, 61
n.4, ¶ 12 (App. 2010).
¶14 For the foregoing reasons, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
1 At the probation violation and disposition hearings, the superior
court denied Begay’s oral motions to withdraw counsel. In denying the
motions, the court noted that Begay refused to communicate with counsel
and was “deliberately engaging in serious and obstructionist misconduct.”
4